I think I'm with Ramesh Ponnuru
on this one:
Maybe the dissenters got it right, but it's not obvious to me that the Supreme Court was ever meant to enforce the Takings Clause against local governments. And I really doubt that this decision is "going to be politically very, very potent." Is anyone really going to vote Republican in order to get judges who might stand up to big business? I doubt it--and I'm with the dissenters on the egregiousness of the policy.
(Emphasis added.) Isn't there a compelling federalism case for what the majority did? The states and municipalities are laboratories, right? Well, if New London and Connecticut want to run a really stupid experiment, massively unsettle property rights, and "foul their own nest" (as a wiser, and funnier, man than I said of the case), why not let them? Yeah, people like Mrs. Kelo get hurt, but people get hurt under all the stupid, hare-brained schemes we let states try under the auspices of federalism. Some states, like Michigan, have on their own volition opted for stricter standards as to what constitutes "public use", and nothing in Kelo
prevents other states from doing the same.
Given that the question "is this taking for a public use?" is necessarily contextual, fact-specific, and value-laden, why exactly do we want it to be decided by federal judges as opposed to local elected officials?
UPDATE: Will Baude
hits me with a thorough counter-argument. I have to respect it, because, well, Will's really, really smart, and has spent more time than I thinking about these issues. Sadly, any reply, to him or any other response that pops up, will have to wait until Sunday night, as I'm about to skip town for Virginia Beach and my cousin's wedding. So don't think my radio silence signals rudeness (or worse, backing down!). I'm simply stranded in a world beyond the laws of God and man - coastal Virginia. Take care all; see you Sunday.