Kelo Land

Professor Schaff below invites me to explain why I am not so upset as he over the Supreme Court's Kelo v. New London decision.  The question is whether a state can take land away from private individuals of modest means and then transfer it to other private parties of rather immodest means in order to encourage economic development.  My colleague would have had the Court say that private property can only be taken for public use, and that

"public use" means something that is owned and/or operated by the public.  The Supreme Court's allowance of taking private property for private companies renders "public use" operationally meaningless.

I have sympathy for this argument, but my skepticism wins out.  How much of the project must be owned by the public?  All of it?  Only the land?  I am a judicial minimalist.  I would have the Courts decide as little as possible, especially when it comes to economic matters.  Unfortunately the Constitution does not define public use, and I am hesitant to think that this court or any other can cut reasonable distinctions in such a case.

I make one small correction in Professor Schaff's description, but it goes to the heart of the matter.  He says that

Sen. Cornyn (who would also make a good Supreme) has introduced a bill overturning the recent Kelo v. New London decision about taking private property for "public use".

Federal legislation cannot, of course, "overturn" a Supreme Court decision.  What Sen. Cornyn would have Congress do is provide protection for private property precisely by working out acceptible legal defintions of public use.  Many states already have such limitations on public taking, and I gather than the taking in Kelo would not be legal in such places. I prefer legislation when it comes from legislatures rather than courts.