TCS: Bainbridge on Kelo

Here is the best thought out and argued article on the Kelo finding that I've seen.

The discussion wraps around the public use definition. There is the public possession definition of public use, and now the supreme court has defined it as "public purpose." I think a rather illogical change in the meaning.

There also is the discussion about profitability that seems to have been completely ignored in all the articles supporting this travesty. The whole argument based on utilitarian ethics fails greatly here. It wouldn't provide the most good for the most people, it would provide the most good for the private entity that was handed the property.

If this new development increases the value of the property, all of that value will be captured by the new owner, rather than the forced sellers. As a result, the city will have made itself richer (through higher taxes), and the developer richer, while leaving the forced sellers poorer in both subjective and objective senses.

This argument makes a strong case against the "just compensation" portion of the fifth amendment's Takings Clause. If the taken property is vital to the profitability of the venture that is for the "public purpose" of taxes, shouldn't just compensation include monies related to the profits that the original owner will be denied as a result of the eminent domain seizure? What is that property really worth? The cost of a housing lot? According to this finding that is exactly the cost. Now the owner has lost his voice as to what is "just compensation." If it had been placed into public possession, that would likely be fair, but seeing that the property will be given to an independent private entity for the purpose of making profit, that cost is no longer "just."

This re-interpretation of what "public use" is proves to me that Bush now needs to place an originalist into the Supreme Court to force the balance back to a just reading of the constitution.

UPDATE:
I wonder if the Kelo Plaintiffs have any civil court control on the topic. Could they sue to obtain that "just compensation" as discussed above? One can hope, though I will bet the government will try blocking such a suit.