Two things:
-There is no public use clause. "Public use" is just explaining the type of situation where just compensation is going to be required. Amendment doesn't say: Private property may only be taken for a public use, but not a private use.
-There's no way for a judge to make a clear line between what's a private and public purpose. That's inherently a political decision. There may be some nightmare scenario with eminent domain but, it's either going to be averted by the just compensation requirement or perhaps substantive due process or some rational basis challenge.
I do not agree. "Public use" is clearly meant to constrain the government's taking power. The issue in Kelo is whether or not the taking of private property for economic development satisfies the Fifth Amendment. I would agree with the dissent that it does not. To follow the Court's Kelo decision to its logical conclusion is one where the government can take private property for any use where the benefit to the public may only be merely incidental (e.g. increased tax revenue for the government). And, as the dissent further notes, almost any taking can result in incidental benefits to the public. If "public use" is to mean anything in constraining eminent domain, there must be judicial standards in place. With respect to your second point, I must quote Justice O'Connor's dissent:
Her dissent does much more justice to the Fifth Amendment in keeping a reasonable balance between eminent domain and private property rights.
If you read the text of the 5th Amendment that way, that's fine. It's certainly not clear that it means what you say it does.
And to Justice O'Connor's point: I understand where she's coming from. But, there's no good line to draw between public use and non-public use from the judicial branch. And didn't Justice O'Connor write the majority in a public use challenge to a Hawaiian land reform? Land reform seems like a private use.
Yes,
Midkiff was way, way more radical than
Kelo, so it was pretty dishonest of O'Connor to come back around and say
Kelo was not okay but
Midkiff, where she wrote the (unanimous!) majority, was. Of course, the beneficiaries of eminent domain in
Midkiff (poor Hawaiians) were certainly more sympathetic than the beneficiaries in
Kelo (some pharmaceutical company, I think?), but that shouldn't change the jurisprudence.
http://en.wikipedia.org/wiki/Hawaii_Housing_Authority_v._Midkiff(Of course, I think both cases were unquestionably rightly decided, both from a policy and a legal standpoint.)
