I also read Prof. Adler’s piece and wasn’t persuaded by his Kelo argument. He contends that the dissenters on the Court and the Institute for Justice lawyers didn’t clearly show that the “public use” language in the 5th Amendment was meant to rule out the kind of property seizure New London (and many other municipalities) has done to spur “revitalization.”
I think Justice Thomas was quite convincing on that, observing that elsewhere in the Constitution, the Framers used the phrase “general welfare” when they meant to say “for the benefit of the public at large.” When it comes to seizures of private property, they instead wrote “public use.”
Just perform this thought experiment. It’s 1791. A town in New Hampshire has just begun eminent domain proceedings to take land with a modest house on it in order to allow another citizen to build a hotel, a use of the land that will garner the town, say four times the property tax paid by the current homeowner. You write to all the members of the Constitutional Convention and ask whether they meant to allow such takings. How many “yeah, that’s cool” answers do you think you get?
I submit that you’d get none. If any of the gentlemen offered any comments, I think they would sound a lot like the key point of the dissent: If you allow that, then hardly any person’s property is safe from confiscation.
