The Supreme Court’s 2005 ruling in Kelo v. New London upholding a local government’s taking of private property for economic development sticks out as a bad decision that encouraged even worse government behavior.  Several states passed laws strengthening private property rights in Kelo’s wake, but the precedent still stands. Justices Clarence Thomas and Neil Gorsuch think it’s time for the court to take another look at Kelo…and strike it down.

In a brief opinion dissenting from the court’s refusal to hear a property rights case out of Illinois, the two justices write:

…this petition provides us the opportunity to correct the mistake the Court made in Kelo. There, the Court found the Fifth Amendment’s “public use” requirement satisfied when a city transferred land from one private owner to an- other in the name of economic development. See 545 U. S., at 484. That decision was wrong the day it was decided. And it remains wrong today. “Public use” means something more than any conceivable “public purpose.” See id., at 508–511 (THOMAS, J., dissenting). The Constitution’s text, the common-law background, and the early practice of em- inent domain all indicate “that the Takings Clause author- izes the taking of property only if the public has a right to employ it, not if the public realizes any conceivable benefit from the taking.” Id., at 507–514; see also id., at 479 (ma- jority opinion) (acknowledging that “many state courts in the mid-19th century endorsed ‘use by the public’ as the proper definition of public use”). Taking land from one pri- vate party to give to another rarely will be for “public use.” But see id., at 513–514 (THOMAS, J., dissenting). The ma- jority in Kelo strayed from the Constitution to diminish the right to be free from private takings. See generally id., at 505–523 (same).

Deciding not to revisit the Kelo precedent: “not only disserves the Constitution and our precedent, but also leaves in place a legal regime that benefits ‘those citizens with disproportionate influence and power in the political process, including large corporations and development firms.’”

Maybe the court will have the courage to take up Kelo again. Until that day comes, the precedent that allowed the powerful to seize the property of the weak in the name of economic development still stands.