This "because we can" attitude and justification seems lacking both as a matter of constitutional interpretation and logic. The only condemnation which might fail such a test is when open hostility to entity "A" in the legislature leads them to condemn his land and give it to entity "B". Even this type of overt conduct might be justified by some public good, however, as long as any rational person might believe it to be so. In short, the standard is lacking. As Professor Merrill recognizes, the power of eminent domain at its core is extremely troubling, and though it is a long recognized right of government, it ought to be used sparingly. There are two key ways in which to restrict the use of the condemnation power. One is direct: impose a more restrictive definition of public use and make the legislature justify its determination of the public good under some less deferential standard. For instance, cases like Roper and VMI both recognized some higher standard of review even within their levels. Roper used a "rational basis with bite" approach to strike down a Colorado provision which would have denied preferred status to homosexuals. Justice Ginsburg's opinion in VMI used a somewhat higher standard than the "intermediate" standard of review usually applicable to sex discrimination to strike down VMI's single sex schooling. Professor Merrill is opposed to imposing a restrictive "gloss" upon the words "public use", and he certainly has some strong arguments on his side. However, property rights were one of the, if not the, most important concerns of our framers. I do not mean to suggest that a governmental entity might not condemn property for the purposes of economic redevelopment, but only hope that they might have to actually justify the taking by something more than the "because we can" standard. As Professor Merill admirably points out, in condemn and transfer schemes, citizens are unlikely to be burdened by the taxes necessary to fund the taking, since the payment often comes from the retransfer, thus creating a wash for the government. Thus, in such cases where the government would condemn and transfer property to other private entities, I would impose a higher standard on the government's justification. Fact-finding, a good faith concerted effort to buy through the market, and a determination that the condemned land is "necessary" and not just convenient, and that the development might be successful might all be factors to meet this heightened standards. Property rights were one of the foremost concerns of our forefathers; whereas in the past years our courts have been more than willing to impose greater control upon the legislative branch in other realms of private liberty, they have allowed government to justify transferring private lands among people (as in Midkiff) upon the flimsiest of justifications. Unlike Professor Merrill, I believe that the "public use" requirement of the 5th amendment counsels a more searching review of legislative action in this area.
Professor Merrill, as I mentioned, recognizes the inherent potential for abuse of this power by the legislature, and would therefore find ways to restrict its use indirectly by making it less profitable for the government entity. He would change the "just compensation" formula to include certain other measures of compensation and in cases of condemn and retransfer, would grant the landowner some of the residual beenfits of the economic development for which their land is used. In this way, government would be disincentivized from pursuing condemnation instead of acting through the market. In addition, he suggests splitting the premium that comes from grouping a set of parcels with the original landowner. Professor Merrill's brief is well-argued, and points out the definite shortcomings of the current just compensation formula. While we both agree that the Court us unlikely to side wholly with the Kelo's and the Insitute of Justice argument about the restrictive use of public use, we also both recognize the absolute need to prevent the abuse of eminent domain power. I believe that in addition to doing so indirectly, we ought to rethink the direct way in which we deal with a legislature's determination of the public good and impose some heightened standard upon which government would need to justify their taking when there stated goal is to transfer private property to another private entity. When the taking of property will keep land in the hands of government, perhaps the lesser standard is applicable, but in a case where private entities are the residual benefactors, it makes sense to have the government justify their favoritism of one citizen over another under some higher standard.