> [What difference does it make whether the property
> being taken by way of condemnation is for public
> ownership?] If you grab land for a publicly-owned
> football stadium that profits a private team, why should
> that have more legal sanction tha[n] land handed over
> to a private developer who signs a contract to create
> 500 living wage jobs and build 300 affordable housing
> units?
In important part, because the first of these scenarios is constitutional if the jurisdiction specific procedures for condemnation are followed whereas the latter scenario ought be ruled unconstitutional because it violates what the constitutionl actually says (compared with what some other and a narrow majority of its present judges have "construed" it to "mean").
> "Public purpose" is inherently a political judgement,
> not a simple question of who ends of owning the land
> at the end of the day. My core position is that I don't
> think courts should be making those political judgements,
> so that's why Kelo was properly decided.
One "difference" (noted, quite correctly, by the Kelo dissenters) concerns what has come to be referred to as "judge made" as distinguished from constitutionally prescribed law, which, in turn, implicates issues (the "Problem"?) of "strict Construction" (or not) and(but?), relatedly, of what "law" (and "lawlessness") ought mean in a constitutional context.
Mr. Newman (and the Kelo majority) refer to a "public use" although the Fifth Amendment itself -- putatively if, apparently, not actually, the constitutional provision the Supremes were construing/applying purportedly to determine the federal constitutional justification or not of the taking at issue in Kelo* -- does not speak of "public purpose" (or, indeed, in the present context, of intent at all) but, rather, whether the taking is/isn't for "public use" and yet it was not disputed (or disputable) that the property at issue in Kelo is being taken for private, not public, use under any more or less generally recognized definition of "private" (even though, concededly, it has also been asserted -- though hardly actually proven! -- that there will be beneficial "public purposes" of least interim job creation and [net of public expenditure for the project?] enhanced tax revenues).
Perhaps not incidentally, and contrary to Mr. Newman's apparent implication above, the narrow (5-4) Kelo ruling obviously will invite, not deter, further litigation about "public use" and "public purpose" continuing a trend (arguably exacerbated by Rehnquist and some of the other present dissenters by their own land use related decisions beginning in the mid 1980s) to transmute the federal courts into, in effect, a national "zoning board" to resolve local land use disputes.
The more general problem -- and I dare suggest that it is a potentially very serious problem -- is the Kelo is of a piece with the court's other recent decisions in the majority's disregard for anything remotely approaching meaningful constitutional reasoning. Indeed, it is a sad day when one compares what amounts to little more than a fiat -- an almost complete lack of reasoning, as such, by Stevens in the Calif. medical marijuana case -- with Thomas' opinion and has to acknowledge that (except for its dumb introduction) the (by far) most persuasive (and honest) opinion in that case was Thomas' although he is otherwise someone arguably not fit to sit in traffic court much less in the U.S. supreme court. And the less said about the incoherence, and facial lawlessness, of Breyer, the "swing vote" in Ten Commandments cases, the better.
Granted, for one interested primarily in a short term result, none of this matters; but for anyon who cares about the U.S. supreme court's constitutional/institutional role, and for the role of the U.S. constitution itself, in U.S. public life, the the increasingly low regard for the Supremes across the board ("left"? "right"?) the court itself has made worse by all the decisions referred to above ought be a matter of serious concern.
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* "[P]rivate property [shall not] be taken for public use,
without just compensation" (U.S. Const., Fifth Amendment),
assuming that the standard in turn applied by the courts
as required by the Fourteenth Amendment (that "no[ ]State
[shall] deprive any person of . . . property, without due
process of law") fully incorporates the Fifth Amendment's
said proscription to determine state condemnation practices.