by Matt Barr

"The Court has erased the Public Use Clause from our Constitution"

Justice Thomas, dissenting:

Long ago, William Blackstone wrote that “the law of the land ... postpone[s] even public necessity to the sacred and inviolable rights of private property.” 1 Commentaries on the Laws of England 134—135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for “public necessity,” but instead for “public use.” Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a “ ‘[P]ublic [P]urpose’ ” Clause, ante, at 9—10 (or perhaps the “Diverse and Always Evolving Needs of Society” Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational,” ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”

I cannot agree. If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O’Connor powerfully argues in dissent. Ante, at 1—2, 8—13. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court’s error runs deeper than this. Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them.

Thomas has become a giant on this Court. The intolerable Kelo majority opinion continues the rollback of liberty in the United States.

SCOTUSBlog will have all-star analysis. Sort of like the Titanic band playing Nearer My God To Thee, you know.

UPDATE: Just saw this near the end of Ms. Justice O'Connor's dissent:

[T]he Court suggests that property owners should turn to the States, who may or may not choose to impose appropriate limits on economic development takings. Ante, at 19. This is an abdication of our responsibility. States play many important functions in our system of dual sovereignty, but compensating for our refusal to enforce properly the Federal Constitution (and a provision meant to curtail state action, no less) is not among them.

I'll say. Longtime readers, all four of you, will know I favor a default position that the people should decide how to govern themselves, usually via their legislatures. This is obviously (I hope) inapplicable where the Constitution has not granted the legislature power, or reserved it to the States, and has indeed instead prohibited the very power legitimized and endorsed by this myopic Court.

In general, the Bill of Rights is meant to preserve access to the democratic process. It is unlikely a government interested in self-perpetuation will use the mechanism of eminent domain to intimidate political opponents (though not out of the realm of possibility, particularly now that it can), the way it might its search and seizure power or regulation of speech or assembly. But the Public Use Clause is an important curb on the power of the State to make decisions about how "best" to do things that should, in a functioning economy and liberty-loving society, be left to individuals. The emasculation of the clause is contemptible, and its dangerousness can't be overstated.

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