Here is a nice statement of the law of "public use" from Justice O'Connor's dissent (p. 802):
"Our cases have generally identified three categories of takings that comply with the public use requirement, though it is in the nature of things that the boundaries between these categories are not always firm. Two are relatively straightforward and uncontroversial. First, the sovereign may transfer private property to public ownership—such as for a road, a hospital, or a military base.
Second, the sovereign may transfer private property to private parties, often common carriers, who make the property available for the public’s use—such as with a railroad, a public utility, or a stadium….
[Third] But “public ownership” and “use-by-the-public” are sometimes too constricting and impractical ways to define the scope of the Public Use Clause. Thus we have allowed that, in certain circumstances and to meet certain exigencies, takings that serve a public purpose also satisfy the Constitution even if the property is destined for subsequent private use. See.e.g., Berman v. Parker, 348 U.S. 26 (1954);Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984)."
Should the Constitution be forsaken whenever Justices believe it is "too constricting" or "too impracticable"? Should we allow warrant-less searches by the police whenever compliance with the Fourth Amendment is deemed too constricting and impractical?
See also this great quotation from Justice Thomas' dissent (p. 805):
"Long ago, William Blackstone wrote that “the law of the land ... postpone[s] even public necessity
to the sacred and inviolable rights of private property.”1 Commentaries on the Laws of England 134-135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for “public necessity,” but instead for “public use.” Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a “‘[P]ublic [P]urpose’” Clause, ante, at 2662- 2663 (or perhaps the “Diverse and Always Evolving Needs of Society” Clause, ante, at 2662 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational,” ante, at 2667 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”"
