Richard,
The Supreme Court justified its decision in Kelo by glossing over the facts of their fact-intensive past decisions to conclude that they've allowed takings for redevelopment before, so that must be the law. The problem with this conclusion is that it's almost like they didn't read their own cases.
As a back-up, they hint that the political process will act as a limit on takings (in the Court's eyes, legislative bodies authorize the takings, but are subject to the prying eyes of the electorate). The problem with that stance is that it ignores (probably intentionally) the fact that this country's political processes are designed NOT to respond quickly to political winds. Thus, the legislature will be politically accountable for its actions, but only after it's too late. In Justice O'Connor's words, "were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff." That fluff is now law.
A more jaded way of reading the decision is that it's the Court's way of forcing legislators to face up to their constituents (and explain to them why they created a monster: a corporation authorized to take private property).
Either way, O'Connor's dissent offers a well-reasoned opinion, noting that private-to-private takings were justified only in well-documented extreme cases (64% blight in DC, 72 landowners holding 47% of all of Hawaii's land).
This case definitely blows the door wide open for private-to-private takings and puts the onus on the victim to prove a tough case. Just be thankful the age of the CDC is over.
I haven't read the opinion yet (printed it off though) but even Justice O'Conner's reasoning bears some further elucidation. The southwest DC case wasn't so cut and dried. The Federal Government held purchase options on that land since the 1930s. What property owner would invest and improve the property in the interim? The 64% blight was produced in part by the government... The type of process of abandonment and disinvestment is described well in Jane Jacobs _Death and Life of Great American Cities_.
A few comments:
1) The Kelo case does create the potential for a slippery slope leading to backroom deals between lawmakers and developers. To satisfy the constitutional conditions set out in Kelo, all a crooked city council member would have to do is to put together some sort of grand plan for economic development built around their land grab, and take some steps to make it look like the bidding process for the development is fair when it's not. As long as they can plausibly describe this land grab as achieving a public purpose, it's constitutional. And that's worrisome.
2) The nightmare scenario described above is pretty clearly not what happened in New London, CT. The city was in a bad way economically, and city leaders came up with a plan to create jobs. And the court seems to believe that you couldn't tell ahead of time which developers would benefit from the plan.
3) Private property is always contingent. DC residents pay a little bit of their home value in tax each year because we collectively think the government should make life better for us in a variety of ways. Takings are obviously different from taxes, but I think the difference is one of degree, not of kind. If it's OK for government to offer tax breaks in the name of economic development, then takings should be OK for the same purpose.
4) I'm not too nervous about the slippery-slope argument simply because Kennedy's concurring opinion makes it quite clear that the Court can imagine abusive situations in which deference to state/local legislatures will not be the rule. Until such an abusive situation occurs, eminent domain seems like a pretty harmless area in which to honor the whole federalist agenda pushed by the right-wingers on the court.
Commenting by HaloScan
