The eminent domain boogeyman has been holed up in my closet for a while, giving way to other important matters like that pesky war against radical jihad. Nevertheless, it’s an important issue that hasn’t been dealt with since SCOTUS ruled that this land is neither mine nor yours, but the governments.

By a 5-4 vote, the high court had essentially allowed cities to invoke the power of eminent domain to seize private property not for roads or schools, as is common practice, but for less noble purposes, such as indulging Biff McFranchiser’s discovery that your land is the ideal location from which to sell hamburgers. The cities, which would force you to sell at whatever “fair market” price they demanded on threat of condemnation, would get to keep the toy at the bottom of your Unhappy Meal, in the form of higher tax revenue. Biff, to the cities’ thinking, would generate more income for their coffers than you would by, say, having Pictionary parties or sitting on your couch watching TV.

. . .Piscataway (an Indian term meaning “it is getting dark”) was once a charming farm community. But like so much of America, it is now a charmless depot off the Turnpike, a 19-square-mile blur of box stores, strip malls, and high-density housing. In the middle of this, sprawled over 75 acres, sits the Halper farm, one of the last agricultural tracts in Piscataway.

. . .The township has made feints at taking the Halper property for decades. In 1975, it actually did force the Halpers to sell 25 acres, which Piscataway added to an adjoining park. But the current festivities got underway in earnest in 1998. Around that time, the city purportedly grew nervous that some of its last privately owned green space might fall into the hands of ghastly developers, the kind that are regularly found in bed with the local politicians, making New Jersey a notorious “pay to play” state. Take a ride around the perimeter of the Halper farm, and such concerns don’t seem to have plagued city planner consciences in the past, what with all the quaint mom ‘n’ pop operations like Wal-Mart, Starbucks, and Hollywood Tans that blanket the town like bad wall-to-wall carpeting.

From the look of things, plenty of people are making hefty profits selling Piscataway real estate off to the highest bidder. But to the city’s thinking, the Halpers shouldn’t be among them. They only worked the farm for nearly a century, why should they make money off it? Never mind that they’d received unsolicited offers for their land for decades and managed not to sell. Piscataway officials were coming after their property anyway, vowing to maintain it as “open space.” An incredulous Clements asks what could be “more ‘open space’ than a farm?”

An Ohio suburb’s attempt to seize private homes using eminent domain so they can build offices and shops was shot down by Ohio’s high court.

Ohio’s highest court said a Cincinnati suburb may not take over private property to make way for a $125 million development of offices, shops and restaurants.

The case is the first challenge of property rights laws to reach a state high court since the U.S. Supreme Court ruled that local governments can seize homes for use in private development.

The Ohio case involved the city of Norwood, which used its eminent domain authority to overrule holdouts against private development. The project is meant to revitalize the neighborhood, but the state court says economic development alone doesn’t justify taking homes.

In my post on President Bush’s order claiming to limit eminent domain I pointed out that the opinions of Daren Bakst at the John Locke Foundation and Ilya Somin at Volokh Conspiracy were in appearant disagreement. But now Bakst has taken a closer look and largely agrees with Somin’s skepticism.

Somin argues, and I agree, that the Order is undermined by the following language:

Section 1. Policy. It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.

The problem is the “merely” language. According to the Order, it probably is o.k. to take private property even if it is for economic development reasons as long as it benefits the general public and doesn’t “merely” benefit private parties. Even after Kelo, no governmental entity would argue that a taking is merely to benefit a private party–they always use the argument that a taking is for the benefit of the public.

At this point legal opinion seems fairly strong that the order will have little to no effect on limiting eminent domain seizures.

Cato-at-liberty doesn’t understand why conservatives would think the Kelo decision is activist.

But conservatives cannot complain that the Kelo decision was another example of judges overriding the decisions of elected officials, which is their usual definition of ?judicial activism.? In this case, the judges lamentably deferred to local elected officials, ignoring the property rights protections in the Constitution.

Overriding decisions of elected officials is one method of judicial activism, but that doesn’t make it the definition of judicial activism. That conservatives often point out when judges usurp the power of locally elected officials is merely a reflection of how often they do it; it’s not an indiction that conservatives see it as the only type of judicial activism.

At it’s simplest, judicial activism is a judge taking on more authority than the Constitution grants him. Whether that authority is used to override an elected official (abortion) or to grant unconstitutional powers to government (Kelo) is irrelevent; it’s still activism. It seems to me libertarians should be welcoming conservatives who support them in challenging Kelo, rather than complaining about a nonexistent flaw in conservative reasoning.

On the one-year anniversary of the controversial Kelo decision, President Bush issued an executive order that appears to limit eminent domain takings to only situations of public use.

Daren Bakst at the John Locke Foundation says it is “very well written” and adds that it “clearly only allows for the taking of truly “blighted” properties” and “that private property should not be seized for a private party’s “use” of the property (not just “ownership” of property).”

Ilya Somin at the Volokh Conspiracy has a different take. According to him, “the order does not in fact bar condemnations that transfer property to other private parties for economic development.” He concludes, “this language validates virtually any economic development condemnation that the feds might want to pursue.”

Which of these differing legal opinions is correct? Only time will tell.