Michael Dorf takes up Justice Stevens relatively uncontroversial remark that two recent rulings clearly followed the Constitution, but that the actual policy decisions were in his opinion unwise. This is expressed now and again in opinions themselves, often dissents, in which the justice says "if I was a legislator ..."
And, people of all ideological stripes tend to do it now and again. The principle fairly straightforward, Dorf spends the final third of his column defending Kelo. In effect, he says that Stevens should agreed with both the constitutional principle and the legislative policy. This part of the essay leaves something to be desired, especially given his "this is fairly obvious" tone.
Everybody concedes that if the stadium will be owned by the city, then its construction constitutes a public use that will support the power of eminent domain. But, under the rule of the Kelo critics, if the city wants the stadium to be built and owned privately, then the use is no longer "public." Does that make any sense?
If you think it does make sense, suppose the city itself builds the stadium. Is it forbidden from ever selling the stadium to a private party? If not, how long must the city wait before making such a sale before facing litigation contending that its temporary ownership of the property was merely a pretext for a Takings-Clause-violating private-party-to-private-party transfer?
I'm not sure if "everyone" thinks that the government can take private property in this fashion for the "public" use of running a sports stadium. A few do think this was concerned with court buildings and the like. This is why the question of sale is not so obvious -- eminent domain was not chiefly concerned with this sort of thing.
It does make sense to require the stadium to be run publicly in some fashion. What if the owners just sell the stadium in two years and leave for fresher pastures (perhaps go to Baltimore)? I assume that sale too might be required to further "public use," though that seems a questionable reduction of property rights. But, this underlines the point that some middle ground might be available, if "public use" is deemed to have some actual meat to it. The opinion's tone seems to suggest otherwise.
Finally, public amusement is a lot closer to"public use" than simple economic development. This answers in part the transfer question.
Given the vocal criticism that economic libertarians (and others) have leveled against Amtrak, do they really want to advocate an interpretation of the Fifth Amendment that would lock in government ownership of railroads and other public projects facilitated by the power of eminent domain.
This doesn't really follow. The railroads and such would probably be intimately regulated, though, since the land is being taken for "public use." Anyway, again, this is a big step away from economic development per se. Ditto with the reference to government supported health insurance and the like. The Constitution arguably supports this under its General Welfare Clause etc. Libertarians might not like it as a policy matter. But, that kind of makes Stevens point.
Unlike the use of the eminent domain power, the use of the powers to enter into contracts and impose taxes do not trigger the protections of any specially-tailored constitutional provision.
You mean besides the Contracts Clause? Again, this might be true to an extent (though surely there are limits on taxation -- the libertarians surely think so), but a constitutional argument would be that this is just a flaw in the text. The Takings Clause itself is a "specially-tailored" provision that guards against certain actions.
Second, although Kelo was the first Supreme Court case in which a private home was taken in a forced sale to be conveyed to a private developer, the principle that public use means public purpose--regardless of whether the ultimate transferee is public or private--has been well established for decades. Yet there is little evidence of widespread abuse of the power.
The first statement tempers the second -- this sort of thing in particular is not "well established." It is the FIRST time the Supreme Court decided the matter. As to the absence of "widespread abuse," I do not know what he means. Surely, critics have horror stories. And, Kelo will only open the door wider.
Yet, at the same time, that publicity has sparked an even greater response in the other direction; local, state and national politicians eager to keep their jobs will not lightly use their eminent domain power, now that they see the intense public hostility towards forced sales of homes to private developers.
It's nice that the public, helped by the conservatives in power (though various liberals are upset too), recognize the potential problem. But, I wonder if Dorf would suggest a threat to the First Amendment would be so easily answered. Anyway, such outrage often has a short life, things eventually returning to normal.
Fourth and finally, the Fifth Amendment's Takings Clause is not the only constitutional protection for homeowners.
This not only goes against the statement above that economic policies generally do not have specific limitations placed on them, but in practice, such protections are applied somewhat haphazardly. A blatantly inequitable decision might be handled, but even them not all the time. This final point would be a bit more reassuring if Justice Kennedy's concurrence was the opinion of the court, the limits put on eminent domain a bit more forthrightly applied.