Has the Court "erased the Public Use Clause from our Constitution"?

That's what Justice Thomas wrote in dissent in Kelo v. City of New London, yesterday's Supreme Court Takings Clause case. Much of the criticism of the case that I've seen taps the stimulating rhetoric served up by Justice Thomas. Is the outcry justified?

You have to accept that government can take property. The power of eminent domain is ancient. What the Constitution requires that "just compensation" be paid to the owners and that the taking be for a "public use." This case was about what counted as a "public use." What was the questioned use in Kelo? As described by Linda Greenhouse in the NYT: it was "a large-scale plan to replace a faded residential neighborhood with office space for research and development, a conference hotel, new residences and a pedestrian 'riverwalk' along the Thames River."

The project, to be leased and built by private developers, is intended to derive maximum benefit for the city from a $350 million research center built nearby by the Pfizer pharmaceutical company.

New London, deemed a "distressed municipality" by the state 15 years ago, has a high unemployment rate and fewer residents today than it had in 1920.

Some people would like to say that the city should have had to run the development project itself for it to count as "public use." Should that be an absolute rule? No private developers? The public benefit is still there:

"Promoting economic development is a traditional and long accepted function of government," Justice Stevens said, adding, "Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose."...

Justice Stevens ... said the plan "unquestionably serves a public purpose," even though it was intended to increase jobs and tax revenue rather than remove blight.

He described the plan as "carefully formulated" and comprehensive. Sounding a federalism note, Justice Stevens said that state legislatures and courts were best at "discerning local public needs" and that the judgment of the New London officials was "entitled to our deference.".

So we're left wondering what would overcome this deference to the choices of the local political processes, but the strength of the dissenters, who would have adopted a hardline rule against private development, cautions against overreliance on judicial deference:

Both Justice O'Connor and Justice Thomas ... said the decision's burden would fall on the less powerful and wealthy.

"The government now has license to transfer property from those with fewer resources to those with more," Justice O'Connor said. "The founders cannot have intended this perverse result."

Justice Thomas, who called the decision "far reaching and dangerous," cited several studies showing that those displaced by urban renewal and "slum clearance" over the years tended to be lower-income minority residents.

It's interesting -- isn't it -- that the Court's liberals stressed "federalism," which the conservatives often praise, and the Court's conservatives stress the oppression of the poor by the rich, usually the plaint of the liberal.

The question is how much courts should involve themselves in reassessing the work of local government. If the local political processes result in spending tax money in an effort of this sort, replacing one land use with another, how much should courts scrutinize that choice? How much should local government need to pour its resources into litigation in order to get something done that elected officials believe is worth doing? Whatever you think of the wisdom of the project in this case, the standard the Court sets will affect all sorts of other cases.

Reading the various commentators, I was impressed by this post from lawprof Tom Merrill (at SCOTUSblog):

I think the case sends just about the right message. The Court is not prepared to adopt a per se rule against takings for economic development. But the amber light is flashing. Stevens and Kennedy seem to say that careful planning and lots of community input are important in sustaining the use of eminent domain for economic development. Kennedy ... warns that he may come up with a theory in the future which would allow him to go the other way -- so watch out! The Court is closely divided 5-4, which means another, more egregious example of condemn-and-retransfer might get struck down. So the message to state courts is: go ahead and use eminent domain for economic development, but please try to take property rights more seriously in the future. I think this is exactly the right message. it preserves federalism in this area, but tries to re-shape values and attitudes to be less casual about overuse of eminent domain, which can be a wrenching experience for people.

There is a message here for local government: if you go further than the City of New London did in Kelo, you will get tied up in litigation. Thus, the case doesn't unleash local government to condemn property willy-nilly and shift ownership around lightly. Merrill describes the kind of case that might turn that amber light red: "a case in which it looked like some politically unaccountable development authority had sold out to a private developer or big box store."

I'm not an expert in this area of law, but readers requested my opinion -- perhaps hoping I would join the outcry about the Court "erasing" the Public Use Clause. It seems to me the Court struck a reasonable balance between property rights and government power. The Public Use Clause still has meaning -- just not an absolute meaning. I realize that people who like to give constitutional language crisp meaning are disappointed, as you frequently are, but there are good reasons why the majority of the Court is drawn to these nuanced interpretations you find so frustrating.