I mentioned in passing Kelo v. New London, the Takings case that the Supreme Court heard a few days ago. In reply to a piece by Dahlia Lithwick and Marci Hamilton, I submitted the below. A view of "public purpose" balanced on the side of legislative discretion (with a reply worrying about its breadth) can be found here. A few others noted that when determining "just compensation," the market can be the judge with holdouts "justly" pushing the price higher given the private property concerns involved.
What is more fundamental to the American Dream than owning one's own house - where one's children can grow up, and where one can grow old? And what shatters that dream more than having one's town decide to forcibly sell one's house - at cut rate - to a private developer?
Granted, promoting economic welfare -- including increasing a city's tax base -- is a legitimate public interest. But that does not mean that shifting private property into different hands is always a "public use" simply because the government will profit from the transfer. That is because the government will naturally profit from the operation of the free market, too - without having to intervene among buyers and sellers.
-- Prof. Hamilton
Those concerned about the constitutional right to privacy should respect the one time that the word "private" is expressly mentioned in the Bill of Rights: the Takings Clause.
It is said that the "Fourth and Fifth Amendments run into each other" because illegal searches and seizures tend to illegitimately lead to self-incrimination. Well, another aspect of the principle might be made -- the Fourth Amendment honors the privacy of the home as does the Fifth -- not surprisingly, the state somewhat selectively honors both strands.
The ultimate value judgment found in the Takings Clause is expressed by frayster Ozark, who is cited at the bottom of the [Slate] article: before the state takes your home and private property away against your will, it has to go through certain hoops. The historical abuses against the state taking said privacy for "public" purposes are easily reaffirmed by looking at the habits of English kings and such.
Or, local governments these days -- our own President, as some mentioned on the [Slate] fray in the past -- got a nice deal when land was taken for his baseball park. Conservative fraysters could shoot back the example of the NYT getting a nice deal for some property from the city, including some taken for by eminent domain. And, any number of dubious examples might be listed. See, for instance, the chapter in Caroline Kennedy's book on the Bill of Rights on this clause.
"Public use" surely did not mean "anything goes" when it was included in the Constitution, but neither did "interstate commerce" or various other things in the Constitution widely interpreted today.* Those who support a broad power when property is at issue, however, do so unwisely, since property at times is quite important to liberty (and liberals) too. Arbitrary action in this field is trouble, leading to some state courts to try to set up some limits. [Differences in viewpoints might suggest why the Court took this case ... the Court is also hearing another property case today.]
Prof. Hamilton suggests they were right, especially since not only is 'public use' often all too loosely interpreted, but 'just compensation' often means bargain prices -- if the use is so publicly compelling, the compensation should be appropriately reflective. As Hamilton suggests, some standards would balance the competing interests involved.
The concern, however, is that the standards would be makeweight. This tends to prove too much, be it this, abortion, or any number of things. Prof. Hamilton's "rebuttable presumption" or any number of alternatives sets up a warning flag that suggests there are two sides here with important interests at stake, including one's right to private property and protection from sweet development deals that corruptly benefit one side. The tests and rules, however roughly as law tends to do so, balances the scales more than the lack of such standards would.
A final word on the likely dissent, perhaps written on 'originalist' grounds: it should be taken with a grain of salt. Justice Scalia, for instance, was a summer originalist in that when precedent (not the Constitution) supported his disdain for certain environmental laws (public right to access to seashores etc.), he took precedent.
Originalism, a balancing test that deals with both sides, or whatever -- I'm with Prof. Hamilton in feeling this is an important case. The factual issue can be put to one side -- the Supremes deal more with the law, and the law should set some limits here. After all, what good is having a conservative leaning court w/o proper care of property rights?
* A traditional basic violation of "due process of law" was to determine if "property was taken from A and given to B" -- such a view is passe in the current world if said property is used for 'public use' and some halfway defensible payment is offered for said property.