[A] few weeks ago, I posted on some of Tom Merrill's remarks at the GELPI Takings Conference, where he described two frameworks for looking at issues like public use: the utilitarian frame and the moral rights frame. The utilitarian frame is concerned with promoting the common good, and as a result would favor a broad reading of "public use". The moral rights frame, in contrast, would be more concerned with a property owner's interest in maintaining possession of property, and as a result would favor a narrow reading of "public use".
I covered Kelo last week in my Property Theory seminar. In a reaction paper discussing the case, one of my students described the majority opinion as Vulcan, imagining the following conversation between Kirk and Spock:
Kirk: We can't just kick people out of their homes!
Spock: Captain, your concern about a few property owners is irrational; this taking is clearly for the greater good.
While Merrill's categories might have more academic appeal, I think that the Spock/Kirk distinction is a lot more fun. Plus, there is the somewhat unexpected result that Justice Stevens is playing the role of the arch-rational Spock, while Justice Thomas is playing the role of the emotional Kirk.
I like this take on Kelo. I'm usually a Kirk myself, but Vulcans make the trains run on time!
Another literary analogy might be Justice Stevens as George Orwell--see p. 795, where he embraces the "more natural interpretation of public use as public purpose." Wouldn't an interpretation of public use as public use be more natural? As Orwell said: “War is peace. Freedom is slavery. Ignorance is strength.” And 2 plus 2 equals 5.
And I hope no one missed the fact that Pfizer was our past, is our present, and will be our future Overlord. We want your house, we own your government, we demand the power to poke you in the arm!
