Justice Thomas's Kelo Dissent: The Perilous and Political Nature of Public Purpose

Abstract

This Essay submits that the arguments that Justice Thomas constructed in his dissent were appropriately focused on the inherently political nature of the Fifth Amendment's Public Use Clause. Unlike the majority, Justice Thomas recognized that when the Supreme Court broadly interprets the public use restriction of the Fifth Amendment's Takings Clause, and at the same time defers to political actors in this arena, it fundamentally abdicates its constitutional responsibility. By deferring to political actors in this area, the Court in Kelo fundamentally abdicated its responsibility and also adopted a majoritarian doctrinal approach. Further, the Court conflated political ends with constitutional purposes. And it is for this crucial reason that the Fifth Amendment aims to insert a check on majoritarian power through express limitations on government's exercise of eminent domain as expressed in the Takings Clause of the Fifth Amendment.