The courts’ role in urban renewal has been as irrational as inevitable. The court’s definition of a “public use,” however, does not conform to the logic of prior decisions on the issue, nor does it square with the historical understanding of a public use. More troubling than the majority’s legal reasoning is the policy it is attempting to promote: a perverted variation of the “manifest destiny” concept of the nineteenth century, only inner cities are the new frontier and minorities are the new Indians. And like the Apache, Utes, and Sioux of the old American West, the poor and disempowered will be forced to vacate the communities and properties that rightfully belong to them in the name of progress, or better yet, economic development. This essay will offer a new interpretation of the Fifth Amendment’s Public Use Clause that bases the definition of a “public use” upon the degree of governmental regulation with respect to the future use. I will argue that this serves as a more “workable” standard than the one currently employed by the majority and the dissenters in Kelo. This is a definition that is not only reinforced by logic, but also the history of the early Republic, state legislation, case law, and the text of the United States Constitution.
Date of Authorship for this Version
Floyd, Dean A. II, "Irrational Basis: The Supreme Court, Inner Cities, and the New "Manifest Destiny"" (2006). Harvard Law School Student Scholarship Series. 5.