I would embark on a three-pronged strategy on these property rights issues:
1) Do what Utah did and start fighting this at the state level;
2) Revamp all "private property" arguments to emphasize the "public benefit" aspects of private property in line with the rulings in the mill acts. If these are they rules they want to play by, we better learn to play by their rule book. And we can win---but it requires a shift in legal strategy away from fighting the old "pristine private property" arguments; and
3) GET NEW SUPREME COURT JUDGES IN.
I don't understand your reasoning.
The use of "public benefit" to argue property cases opens up a whole new can of worms.
Public benefit would open property to endless abuse under a doctrine of the common good. Public benefit could mean anything, to anyone, at anytime. Public benefit appears to be nothing more than the American version of the Marxist "common good."
Under the common good, or public benefit, the good of the group would constantly trump the rights of the individual. Group rights or public good are rampant in socialist/totalitarian governments.
On the other hand, public use severely restricts the condemnation of land under eminent domain. Public use restricts the seizure of property to things like schools or roads. In the USSC decision the court clearly, and wrongly in my opinion, used the concept of "common good" to allow the seizure of private property. It's certainly not a "public use" to seize property and give it to a developer to build an office or a factory. The public cannot use a factory or office.
I'd like to see your reasoning in using "public benefit" to fight property rights cases.
Hmm. I am inclined to respond that I can see no conceivable way for the Supreme Court, regardless of makeup, to strike down the Utah legislation under ANY theory. But then, like a cartoon mouse painting an exit hole on a wall to escape a cat, the Supreme Court has been known to come up with real surprises (Roe v. Wade, for instance).
I agree with you for far more reasons that the Kelo decision that it is imperative to replace the liberal supreme court justices who gave us the Kelo decision with justices of a more libertarian (in a property sense) bent. Janice Rogers Brown would be an excellent replacement.
It should also be kept in mind that the Kelo decision concerned a local taking, not a federal taking. Because of the supremacy clause no state legislation can trump a federal taking. Federal takings will have to addressed on their own terms.