One of the most important factors in creating a stable society with economic growth is property rights. The Supreme Court struck a blow against this basic right in the Kelo decision.

Writing in The American Enterprise magazine ("How about a New Litmus Test?"), William Tucker suggests that this case ought to be considered in the confirmation of the next Supreme Court justice:

"In making its [Kelo] decision, the 5-to-4 liberal majority expressed perfect 1930s logic. ’[T]he area at issue was sufficiently distressed to justify a program of economic rejuvenation,’ wrote Justice John Paul Stevens for the majority. ’[T]he city is trying to coordinate a variety of commercial, residential, and recreational land uses, with the hope that they will form a whole greater than the sum of its parts? Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the Fifth Amendment.’

"Not since the New Deal has anyone in Washington expressed such enthusiasm for the idea that government can promote ’economic rejuvenation.’ During that era, of course, the idea had a lot of support throughout the world. Right in the midst of World War II, however, Frederick Hayek published a book called The Road to Serfdom that took exception to the theory–and became a bestseller as well. Since then, things have never been quite the same. You probably know the arguments well, but here?s a line from Hayek that has always been my favorite. ’The person who advocates government planning,’ he wrote, ’always assumes it is his plan that will be put into effect.?

"That?s exactly what Justices Stevens, Kennedy, Ginsberg, Souter, and Breyer assumed in Kelo vs. New London. They think they?re benignly condoning a few ’downtown renewals’ that will generate municipal prosperity. But wait until local government cronyism takes over. Wait until a thousand New York Times corporations discover they can use their connections in government to get a better bargain in the real estate market. It?s hard to think of a Supreme Court decision that could better pave the way for Third World kleptocracy–or promote economic stagnation, or have a more adverse impact on ordinary people?s lives.

"So if Democrats are going to insist on a litmus test for Supreme Court nominees, let?s have one. Let?s say no new justice can be appointed unless he or she pledges to uphold Justice O?Connor?s ringing dissent on eminent domain. Let?s apply the same standard all new nominees as well."