Meanwhille, from where I sit it’s Tim’s reading of the Fifth Amendment that seems tortured to me — why shouldn’t urban planning count as a public use?
I am going to guess that Tim was referring here to a reading of the 5th Amendment such as Kelo, which was a deeply flawed and, yes, tortured reading of the Constitution. Kelo redefined public use as private use for alleged “public benefit,” which strikes me as the essence of bad constitutional law and bad policy. This ruling opened the door to abusing the property rights of citizens for the benefit of development corporations. It is the very antithesis of the assumption behind maintaining a public commons–instead of preserving the public commons for public use, Kelo attacks the public interest. It is actually the inversion of the rationale for eminent domain.