Earlier this year, I wrote about the potential need to expand (or at least keept at current levels) the government's eminent domain power, particularly as we move into the era of limited natural resources. Yeah, I know, we are not there yet as far as land is concerned, but give us about 100 years:)
Apparently, the majority in Kelo has the same general idea, albeit in the context of economic development plans. The majority correctly holds that condemnation of private land pursuant to a carefully drafted and delineated economic development plan constitutes "public use" for the purpose of the Takings Clause. The majority observes that determination of whether a proposed use is "public" cannot be mechanically determined by looking at the identity of the immediate transferee. Only the ultimate purpose of the use, not mechanics of achieving it, must be public because government involvement is not a prerequisite for public use.
The majority's approach makes a great deal of practical sense. The courts simply cannot be involved in micromanaging land use decisions made by local governments. They have neither the time nor the expertise. So, unless the government clearly engages in favoritism by transfering private land to another private person under a pretext of public use, the courts should not get involved.
I also think Justice Thomas might be right when he says that recent Court decisions altered the meaning of the term "public use." The problem is that changed circumstances require the courts, legally and practically, to look at the term differently. We are no longer in the 18th century when society could blissfully ignor the fact that all resources may at some point become finite. We are also in the position where there are mechanisms in place to ensure that the government taking private land for public use isn't playing games and seizing land for purely private transfers. As land resources become more and more scarce, the eminent domain power would need to be expanded, not trimmed down.
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