Suppose that you don't care much for the recent case of Kelo v. City of New London, (No. 04-108, slip op. (June 23, 2005)), in which a slim majority of the U.S. Supreme Court upheld the taking of private property for private (as opposed to the Fifth Amendment's "public") use. What can you do about it?
You can greatly mitigate the practical effect of Kelo by taking the fight to the state and local level. The Institute for Justice has taken the lead in that effort through its Hands Off My Home initiative. Some states will undoubtedly escape reform, however, and Kelo will at all events continue to control takings by federal officials.
You can support new federal legislation designed to correct Kelo. Texas Senator John Cornyn has introduced a bill, for instance, that aims both to restrict how federal officials take private property and to deny federal funds to state or local projects that fail to satisfy those same restrictions. His bill, S. 1313, [PDF format] counters Kelo by saying, in section 3(b), “In this Act, the term ‘public use’ shall not be construed to include economic development. "
Cornyn's bill has won support among advocates for property rights. Commentators largely approve of its constitutionality, though some doubt the efficacy of the bill. Notably, S. 1313 would at best still allow state and local takings for private use pursuant to a development plan and absent a showing of bad intent. It would, in other words, leave Kelo untouched as a matter of constitutional law.
To drive a stake through the heart of Kelo, you need either to have the Supreme Court reverse it or to amend the U.S. Constitution. The first option doesn't look likely any time soon, so let us focus on the second one: Correcting Kelo via Amendment XXVIII of the Constitution. Specifically, let's set aside the question of the political viability of such an amendment and focus on its wording.
How would you write a constitutional amendment to correct Kelo? So long as you're cleaning house, you might as well also correct the Supreme Court precedents that led to that opinion. How, then, would you word an Amendment XXVIII to clarify that "public use" in the Fifth Amendment does not mean "economic development" (per Kelo) nor "use by other private parties in order to reduce the concentration of land ownership" (per Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984)), nor "use by a mix of public and private parties as part of a community redevelopment plan" (per Berman v. Parker, 348 U.S. 26 (1954))?
I have some ideas for how to word such a Kelo amendment (or, if you prefer, "an anti-Kelo amendment"; I, however, choose to name the amendment in honor of the harmed party rather than the odious opinion). I'm going to take a breather, though, to first see if anyone has questions about the problem. I also invite commentators to preempt my effort by offering their own suggestions for the language of Amendment XXVIII. I think it presents a tough, but not insolvable, challenge.