Conservatives, Kelo, and the Keystone XL Pipeline


Mark Kleiman points out today that support for building the Keystone XL pipeline is an article of faith on the right. However, it can only be built if TransCanada is able to acquire the land it needs to get its tar sands oil from Alberta down to the Gulf Coast:

Of course this runs into another article of the right-wing faith: that using eminent domain to seize property for private, as opposed to public, use — for economic-development projects, for example — is one short step away from the Gulag. Recall that some of the nuttier wingnuts wanted to seize Justice Souter’s home to punish him for his opinion in the Kelo case. I’d been wondering whether any of the anti-Kelo fanatics would let the eminent domain principle interfere with their support for Keystone.

….It’s perfectly consistent to think that eminent-domain powers can be used to complete projects better left unstarted, and also to think that bad projects ought to be blocked on their merits. It’s not quite so consistent to back property rights except when the big energy companies want to confiscate them.

As it happens, my view at the time — and still today — is that Kelo was properly decided. If Congress or the states want to place restrictions on eminent domain, that’s fine, but the Constitution itself doesn’t impose any restrictions except “just compensation.” So if the government decides that the public needs a new oil pipeline, then it can use eminent domain to get the land as long as it pays for it. And if the government further decides that it prefers to have someone else build the pipeline, it can do that too. I might not always like this, but as near as I can tell that’s what the Constitution says.

But most conservatives don’t believe this. So here’s the question: is it hypocritical for them to support the pipeline anyway? Or is their sole obligation to argue their position in front of the Supreme Court and then, if they lose, work within the court’s rules to their best advantage? Generally speaking, I’d say the latter. Just because the government passes a law you don’t approve of doesn’t mean you can’t — or shouldn’t — exploit the law to your full advantage. Once it’s passed (or handed down), the law is the law for all of us, even those of us who don’t like it.

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