The Institute for Justice (IJ), claiming to be dedicated do defending the right to property, has brought a case before Supreme Court. They are arguing against the naked land grab by New London, CT. They are doing it all wrong.
In a case with 'major implications nationwide' (see this CNN.com article from a bit back for an overview), the side that claims to fight for property rights (check out IJ's website) might want to bring out the fundamental, and the correct, argument. Namely, individual rights ought to be inviolate, and New London is clearly violating them. But the most fundamental argument they present, at least in this document, is that 'public use' has to have some limits to have meaning. Then they go on to give a list of reasons why New London's particular land grab is beyond the pale.
However, the whole problem with the term 'public' in 'public use' (or 'public purpose' or 'public good,' etc.) is, as Ayn Rand put it: "'The common good' (or 'the public interest') is an undefined and undefinable concept: there is no such entity as 'the tribe' or 'the public';the tribe (or the public or society) is only a number of individual men." (From "What is Capitalism?" in Capitalism: the Unknown Ideal). In other words, 'The Public' can mean anything at all, and the city of New London is counting on that when it boots people out of their home in the name of 'The Public.'
There is the objection that property rights and eminent domain, which is in the Constitution, clash, and thus the case for individual rights in front of SCOTUS is hopeless. Even if 5 justices miraculously agreed, this argument goes, how can they rule against the Constitution they are meant to uphold? The best chance for winning is to hope they set up some kind of test, like 'reasonable foreseeability.'
However, even if the justices cannot make a judgment that would seem to aim right at eminent domain, that still does not mean you can't bring up individual rights. In fact, the following would be a fine argument: "The real reason to strike down this taking by New London is that the homeowners have a right to their property, and getting evicted against their will is a violation of that right. No government should be able to do that. But if protecting individual rights is not on the agenda, then consider these more tortured, evasive arguments that fit within the context of the unfortunate terminology of the 5th Amendment."
Obviously, the latter half of that could be stated a little more nicely, as long as the point is made that arguments about 'strict scrutiny' and the like are not the real reasons for ruling against New London.
Even if IJ loses the case while arguing for individual rights, they still get the right argument out there. All it would take, in that case, is one strong dissent, perhaps from Justice Thomas, to get a lot of press for the cause, and some buzz generated among legal scholars. And if our nation has fallen to the point where rights, unflinchingly defendend, will not be seriously considered by even one justice out of nine, then we have bigger problems than city councils like the one in New London being drunk with power.