Kelo and the Local Political Process
Most of the commentary on the recent decision in Kelo v. City of New London, in which the Supreme Court upheld a municipality’s right to condemn private land for economic development, has focused on the substantive rights allocated by the case. The determination that the concept of “public use” sufficient to support the exercise of eminent domain was not limited to facilities accessible to the public as a whole seems, for some, a significant deviation from the original function of the Takings Clause. Originalism aside, much of the reaction to the decision evinced hostility to the notion that local governments should ever condemn privately owned property and convey it to private developers in the name of economic development. For others, however, the decision was simply the natural extension of prior decisions allocating to legislative bodies the capacity to determine the appropriate scope of the condemnation power.