The familiar reason offered by the U.S. Supreme Court (most recently in the Kelo case) why judges are so supinely deferential to what they characterize as “legislative” decisions to use eminent domain, is that aggrieved citizens have recourse to the democratic process, and are free to elect other “legislative” officials, more in harmony with their views. But if you think about it, that’s nonsense. The decision to condemn a particular property for a particular “public use” — whether genuine or feigned — is at best made by unelected government functionariers, such as highway commissions or redevelopment agencies.
For an insight into just how insulated from the democratic process was the decision to implement the Atlantic Yards project in Brooklyn, read Norman Oder’s discussion of this topic at http://atlanticyardsreport.blogspot.com/2010/04/greg-david-of-crains-gets-it-very-wrong.html A good read, that.
So when the Supreme Court says that the “legislative” decision to condemn is “well nigh conclusive,” it only surrenders its traditional function of interpreting the constitution and its duty to do so under the checks and balances doctrine. After all, we are endlessly told that it is the courts in general and the Supreme Court in particular who are the interpreters of constitutional provisions. So how come they abruptly lose their ability to perform that function when it comes to the “public use” clause of the Fifth Amendment?