Daily Archives: June 24, 2005

Supreme Court’s Kelo decision confronts fundamental divide in capitalism

I recall the comment of a partner I once worked for who suggested that law school meant that I would always know how to read a Supreme Court opinion but now it was time to make some money. Well, I am glad that I actually do know how to read Supreme Court opinions, especially when they are about how we make money in this country. And yesterday’s decision in Kelo v. City of New London is well worth reading in this regard.

I post this comment and the link here because the case touches on some fundamental conflicts withing capitalism itself. But it also, interestingly, raises concerns about the proper relationship between corporations and the public interest. As one dissenter notes, corporations used to be above all else instruments of a public purpose, whereas in Kelo it is the private interest of Pfizer, the pharma giant, that is one of the issues on trial.

More generally, the split decision (5-4) reflects the basic antinomy in capitalism between a general interest in having a government serve the larger directions of capitalist development versus a strong bias towards individual rights and property ownership. This is not an easy divide to resolve.

The decision is also interesting, of course, because it is part of the larger debates about originalism, federalism and the proper role of the courts in deciding what law is. And if that were not enough motivation to read the entire opinion, along the way we are treated to the delightfully ironic spectacle of arch-conservative Justice Thomas quoting America’s leading marxist legal scholar, Morton Horwitz as well as Justice Holmes’ famous anti-free market dissent in Lochner!