KELO
V. CITY OF NEW LONDON
545
Vote: 5-4
In this highly publicized and extremely controversial decision, the Supreme Court considers whether economic development constitutes a “public use” that justifies a city’s exercise of eminent domain.
Justice Stevens delivered the opinion of the Court.
In 2000, the city of
The city of
These conditions prompted state and local
officials to target
The
The NLDC
intended the development plan to capitalize on the arrival of the Pfizer
facility and the new commerce it was expected to attract. In addition to
creating jobs, generating tax revenue, and helping to “build momentum for the
revitalization of downtown
The city
council approved the plan in January 2000, and designated the NLDC as its
development agent in charge of implementation. The city council also authorized
the NLDC to purchase property or to acquire property by exercising eminent
domain in the City’s name. The NLDC successfully negotiated the purchase of
most of the real estate in the 90-acre area, but its negotiations with
petitioners failed. As a consequence, in November 2000, the NLDC initiated the
condemnation proceedings that gave rise to this case.
Petitioner Susette Kelo has lived in the
In December
2000, petitioners brought this action in the New London Superior Court. They
claimed, among other things, that the taking of their properties would violate
the “public use” restriction in the Fifth Amendment. After a 7- day bench
trial, the Superior Court granted a permanent restraining order prohibiting the
taking of the properties located in parcel 4A (park or marina support).
It, however, denied petitioners relief as to the properties located in parcel 3
(office space).
After the
Superior Court ruled, both sides took appeals to the Supreme Court of
Connecticut. That court held, over a dissent, that all of the City’s proposed
takings were valid. …
Two polar propositions are perfectly clear. On
the one hand, it has long been accepted that the sovereign may not take the
property of A for the sole purpose of transferring it to another private
party B, even though A is paid just compensation. On the other
hand, it is equally clear that a State may transfer property from one private
party to another if future “use by the public” is the purpose of the taking;
the condemnation of land for a railroad with common-carrier duties is a
familiar example. Neither of these propositions, however, determines the
disposition of this case.
As for the
first proposition, the City would no doubt be forbidden from taking
petitioners’ land for the purpose of conferring a private benefit on a
particular private party. Nor would the City be allowed
to take property under the mere pretext of a public
purpose, when its actual purpose was to bestow a private benefit. The takings
before us, however, would be executed pursuant to a “carefully considered”
development plan. The trial judge and all the members of the Supreme Court of
Connecticut agreed that there was no evidence of an illegitimate purpose in
this case. Therefore, … the
City’s development plan was not adopted “to benefit a particular class of
identifiable individuals.”
On the other
hand, this is not a case in which the City is planning to open the condemned
land--at least not in its entirety--to use by the general public. Nor will the
private lessees of the land in any sense be required to operate like common
carriers, making their services available to all comers. But although such a
projected use would be sufficient to satisfy the public use requirement, this
“Court long ago rejected any literal requirement that condemned
property be put into use for the general public.” Indeed, while many state
courts in the mid-19th century endorsed “use by the public” as the proper
definition of public use, that narrow view steadily eroded over time. Not only
was the “use by the public” test difficult to administer (e.g., what
proportion of the public need have access to the property? at what price?), but it proved to be impractical given the diverse and
always evolving needs of society. Accordingly,
when this Court began applying the Fifth Amendment to the States at the close
of the 19th century, it embraced the broader and more natural interpretation of
public use as “public purpose.” Thus, in a case upholding a mining company’s
use of an aerial bucket line to transport ore over property it did not own,
Justice Holmes’ opinion for the Court stressed “the inadequacy of use by the
general public as a universal test.” Strickley v. Highland Boy Gold Mining Co. … (1906). We have repeatedly and
consistently rejected that narrow test ever since.
The disposition
of this case therefore turns on the question whether the City’s development
plan serves a “public purpose.” Without exception, our cases have defined that
concept broadly, reflecting our longstanding policy of deference to legislative
judgments in this field.
In Berman v.
Parker … (1954), this Court upheld a redevelopment plan targeting a
blighted area of
The owner of a department store located
in the area challenged the condemnation, pointing out that his store was not
itself blighted and arguing that the creation of a “better balanced, more
attractive community” was not a valid public use. Writing for a unanimous
Court, Justice Douglas refused to evaluate this claim in isolation, deferring
instead to the legislative and agency judgment that the area “must be planned
as a whole” for the plan to be successful. The Court explained that “community
redevelopment programs need not, by force of the Constitution, be on a
piecemeal basis--lot by lot, building by building.” The
public use underlying the taking was unequivocally affirmed…
In
In that same
Term we decided another public use case that arose in a purely economic
context. In Ruckelshaus v. Monsanto, Co. …
(1984), the Court dealt with provisions of the Federal Insecticide, Fungicide,
and Rodenticide Act under which the Environmental
Protection Agency could consider the data (including trade secrets) submitted
by a prior pesticide applicant in evaluating a subsequent application, so long
as the second applicant paid just compensation for the data. We acknowledged
that the “most direct beneficiaries” of these provisions were the subsequent
applicants, but we nevertheless upheld the statute under Berman and Midkiff. We found sufficient Congress’ belief
that sparing applicants the cost of time-consuming research eliminated a
significant barrier to entry in the pesticide market and thereby enhanced
competition.
Viewed
as a whole, our jurisprudence has recognized that the needs of society have
varied between different parts of the Nation, just as they have evolved over
time in response to changed circumstances. Our earliest cases in particular
embodied a strong theme of federalism, emphasizing the “great respect” that we
owe to state legislatures and state courts in discerning local public needs. For more than a century, our public use jurisprudence has
wisely eschewed rigid formulas and intrusive scrutiny in favor of affording
legislatures broad latitude in determining what public needs justify the use of
the takings power. …
Those who
govern the City were not confronted with the need to remove blight in the
To avoid this
result, petitioners urge us to adopt a new bright-line rule that economic
development does not qualify as a public use. Putting aside the unpersuasive
suggestion that the City’s plan will provide only purely economic benefits,
neither precedent nor logic supports petitioners’ proposal. Promoting economic
development is a traditional and long accepted function of government. There
is, moreover, no principled way of distinguishing economic development from the
other public purposes that we have recognized. … It would be incongruous to
hold that the City’s interest in the economic benefits to be derived from the
development of the
Petitioners
contend that using eminent domain for economic development impermissibly blurs
the boundary between public and private takings. Again, our cases foreclose
this objection. Quite simply, the government’s pursuit of a public purpose will
often benefit individual private parties. For example, in Midkiff,
the forced transfer of property conferred a direct and significant benefit on
those lessees who were previously unable to purchase their homes. In Monsanto,
we recognized that the “most direct beneficiaries” of the data-sharing
provisions were the subsequent pesticide applicants, but benefiting them in
this way was necessary to promoting competition in the pesticide market. The owner of the department store in Berman
objected to “taking from one businessman for the benefit of another
businessman,” referring to the fact that under the
redevelopment plan land would be leased or sold to private developers for
redevelopment. Our rejection of that contention has
particular relevance to the instant case: “The public end may be as well or
better served through an agency of private enterprise than through a department
of government--or so the Congress might conclude. We cannot say that public
ownership is the sole method of promoting the public purposes of community
redevelopment projects.”
It is further
argued that without a bright-line rule nothing would stop a city from
transferring citizen A’s property to citizen B for the sole
reason that citizen B will put the property to a more productive use and
thus pay more taxes. Such a one-to-one transfer of property, executed outside
the confines of an integrated development plan, is not presented in this case.
While such an unusual exercise of government power would certainly raise a
suspicion that a private purpose was afoot, the
hypothetical cases posited by petitioners can be confronted if and when they
arise. They do not
warrant the crafting of an artificial restriction on the concept of public use.
Alternatively,
petitioners maintain that for takings of this kind we should require a
“reasonable certainty” that the expected public benefits will actually accrue.
Such a rule, however, would represent an even greater departure from our
precedent. “When the legislature’s purpose is legitimate and its means are not
irrational, our cases make clear that empirical debates
over the wisdom of takings--no less than debates over the wisdom of other kinds
of socioeconomic legislation--are not to be carried out in the federal courts.” Indeed, earlier this Term we explained why similar
practical concerns (among others) undermined the use of the “substantially
advances” formula in our regulatory takings doctrine. The disadvantages of a
heightened form of review are especially pronounced in this type of case.
Orderly implementation of a comprehensive redevelopment
plan obviously requires that the legal rights of all interested parties be
established before new construction can be commenced. A constitutional rule
that required postponement of the judicial approval of every condemnation until
the likelihood of success of the plan had been assured would unquestionably
impose a significant impediment to the successful consummation of many such
plans.
Just as we
decline to second-guess the City’s considered judgments about
the efficacy of its development plan, we also decline to second-guess the
City’s determinations as to what lands it needs to acquire in order to
effectuate the project. “It is not for the courts to oversee the choice of the
boundary line nor to sit in review on the size of a particular project area.
Once the question of the public purpose has been decided, the amount and
character of land to be taken for the project and the need for a particular
tract to complete the integrated plan rests in the discretion of the legislative
branch.”
In affirming
the City’s authority to take petitioners’ properties, we do not minimize the
hardship that condemnations may entail, notwithstanding the payment of just
compensation. We emphasize that nothing in our opinion
precludes any State from placing further restrictions on its exercise of the
takings power. Indeed, many States already impose “public use” requirements
that are stricter than the federal baseline. Some of these requirements have
been established as a matter of state constitutional law, while
others are expressed in state eminent domain statutes that carefully limit the
grounds upon which takings may be exercised. As the
submissions of the parties and their amici make
clear, the necessity and wisdom of using eminent domain to promote economic
development are certainly matters of legitimate public debate. This Court’s authority, however, extends only to
determining whether the City’s proposed condemnations are
for a “public use” within the meaning of the Fifth Amendment to the Federal
Constitution. Because over a century of our case law interpreting that
provision dictates an affirmative answer to that question, we may not grant
petitioners the relief that they seek.
The judgment of
the Supreme Court of Connecticut is affirmed. ...
…
This Court has declared that a taking should be upheld as consistent with the
Public Use Clause as long as it is “rationally related to a conceivable public
purpose.” This deferential standard of review echoes the rational-basis
test used to review economic regulation under the Due Process and Equal
Protection Clauses. The determination that a rational-basis standard of review
is appropriate does not, however, alter the fact that transfers intended to
confer benefits on particular, favored private entities, and with only
incidental or pretextual public benefits, are forbidden by the Public Use
Clause.
A court
applying rational-basis review under the Public Use Clause should strike down a
taking that, by a clear showing, is intended to favor a particular private
party, with only incidental or pretextual public benefits, just as a court
applying rational-basis review under the Equal Protection Clause must strike
down a government classification that is clearly intended to injure a
particular class of private parties, with only incidental or pretextual public
justifications. As the trial court in this case was correct to observe,
“Where the purpose [of a taking] is economic development and that development
is to be carried out by private parties or private parties will be benefited,
the court must decide if the stated public purpose--economic advantage to a
city sorely in need of it--is only incidental to the benefits that will be
confined on private parties of a development plan.” …
My agreement
with the Court that a presumption of invalidity is not warranted for economic
development takings in general, or for the particular takings at issue in this
case, does not foreclose the possibility that a more stringent standard of
review than that announced in Berman and Midkiff
might be appropriate for a more narrowly drawn category of takings. There may
be private transfers in which the risk of undetected impermissible favoritism
of private parties is so acute that a presumption (rebuttable
or otherwise) of invalidity is warranted under the Public Use Clause. This demanding level of scrutiny, however, is not required simply
because the purpose of the taking is economic development.
This is not the
occasion for conjecture as to what sort of cases might justify a more demanding
standard, but it is appropriate to underscore aspects of the instant case that
convince me no departure from Berman and Midkiff
is appropriate here. This taking occurred in the context of a comprehensive development
plan meant to address a serious city-wide depression, and the projected
economic benefits of the project cannot be characterized as de minimus. The identity of most of the
private beneficiaries were unknown at the time the city formulated its
plans. The city complied with elaborate procedural requirements that facilitate
review of the record and inquiry into the city’s purposes. In sum, while there
may be categories of cases in which the transfers are so suspicious, or the
procedures employed so prone to abuse, or the purported benefits are so trivial
or implausible, that courts should presume an impermissible private purpose, no
such circumstances are present in this case. …
Justice
O’Connor, with whom the
Chief Justice, Justice Scalia, and Justice
Thomas join, dissenting.
Over two
centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:
An ACT of the
Legislature (for I cannot call it a law) contrary to the great first principles
of the social compact, cannot be considered a rightful exercise of legislative authority .... A few instances will suffice to explain what
I mean.... [A] law that takes property from A and
gives it to B: It is against all reason and justice, for a people to entrust a
Legislature with SUCH powers; and, therefore, it cannot be presumed that they
have done it. Calder v. Bull (1798).
Today the Court
abandons this long-held, basic limitation on government power. Under the banner
of economic development, all private property is now vulnerable to being taken
and transferred to another private owner, so long as it might be upgraded--i.e.,
given to an owner who will use it in a way that the legislature deems more
beneficial to the public--in the process. To reason, as the Court does, that
the incidental public benefits resulting from the subsequent ordinary use of
private property render economic development takings “for public use” is to
wash out any distinction between private and public use of
property--and thereby effectively to delete the words “for public use” from the
Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent. …
When
interpreting the Constitution, we begin with the unremarkable presumption that
every word in the document has independent meaning, “that no word was unnecessarily
used, or needlessly added.” In keeping with that presumption, we have read the
Fifth Amendment’s language to impose two distinct conditions on the exercise of
eminent domain: “the taking must be for a ‘public use’ and ‘just compensation’
must be paid to the owner.”
These two
limitations serve to protect “the security of Property,” which Alexander
Hamilton described to the Philadelphia Convention as one of the “great obj[ects] of Gov[ernment].” Together they ensure stable property ownership by providing
safeguards against excessive, unpredictable, or unfair use of the government’s
eminent domain power--particularly against those owners who, for whatever
reasons, may be unable to protect themselves in the political process against
the majority’s will. …
Where is the
line between “public” and “private” property use? We give
considerable deference to legislatures’ determinations about what governmental
activities will advantage the public. But were the political branches the sole
arbiters of the public-private distinction, the Public Use Clause would amount
to little more than hortatory fluff. An external, judicial check on how the
public use requirement is interpreted, however limited, is necessary if this
constraint on government power is to retain any meaning.
Our cases have
generally identified three categories of takings that comply with the public
use requirement, though it is in the nature of things that the boundaries
between these categories are not always firm. Two are relatively straightforward
and uncontroversial. First, the sovereign may transfer private property to
public ownership--such as for a road, a hospital, or a military base. Second,
the sovereign may transfer private property to private parties, often common
carriers, who make the property available for the public’s use--such as with a
railroad, a public utility, or a stadium. But “public ownership” and
“use-by-the-public” are sometimes too constricting and impractical ways to
define the scope of the Public Use Clause. Thus we have allowed that, in
certain circumstances and to meet certain exigencies, takings that serve a
public purpose also satisfy the Constitution even if the property is destined
for subsequent private use.
This case
returns us for the first time in over 20 years to the hard question of when a
purportedly “public purpose” taking meets the public use requirement. It
presents an issue of first impression: Are economic development takings
constitutional? I would hold that they are not. We are guided by two precedents
about the taking of real property by eminent domain. …
In
those decisions, we emphasized the importance of deferring to legislative
judgments about public purpose. Because courts are ill-equipped to evaluate the
efficacy of proposed legislative initiatives, we rejected as unworkable the
idea of courts’ “ ‘deciding on what is and is not a governmental function and
... invalidating legislation on the basis of their view on that question at the
moment of decision, a practice which has proved impracticable in other fields.’
“ Likewise, we recognized our inability to evaluate
whether, in a given case, eminent domain is a necessary means by which to
pursue the legislature’s ends.
Yet for all the
emphasis on deference, Berman and Midkiff
hewed to a bedrock principle without which our public use jurisprudence would
collapse: “A purely private taking could not withstand the scrutiny of the
public use requirement; it would serve no legitimate purpose of government and
would thus be void.” To protect that principle, those
decisions reserved “a role for courts to play in reviewing a legislature’s
judgment of what constitutes a public use ... [though] the Court in Berman
made clear that it is ‘an extremely narrow’ one.”
The Court’s
holdings in Berman and Midkiff were
true to the principle underlying the Public Use Clause. In both those cases,
the extraordinary, precondemnation use of the
targeted property inflicted affirmative harm on society--in Berman
through blight resulting from extreme poverty and in Midkiff
through oligopoly resulting from extreme wealth. And in both cases, the
relevant legislative body had found that eliminating the existing property use
was necessary to remedy the harm. Thus a public purpose was realized when the
harmful use was eliminated. Because each taking directly achieved
a public benefit, it did not matter that the property was turned over to
private use. Here, in contrast,
In moving away
from our decisions sanctioning the condemnation of harmful property use, the
Court today significantly expands the meaning of public use. It holds that the
sovereign may take private property currently put to ordinary private use, and
give it over for new, ordinary private use, so long as the new use is predicted
to generate some secondary benefit for the public--such as increased tax
revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of
real private property can be said to generate some incidental benefit to the
public. Thus, if predicted (or even guaranteed) positive side-effects are
enough to render transfer from one private party to
another constitutional, then the words “for public use” do not realistically
exclude any takings, and thus do not exert any constraint on the eminent domain power. …
The Court
protests that it does not sanction the bare transfer from A to B for B’s
benefit. It suggests two limitations on what can be taken after today’s
decision. First, it maintains a role for courts in ferreting out takings whose
sole purpose is to bestow a benefit on the private transferee--without detailing how courts are to conduct that complicated inquiry.
For his part, Justice Kennedy suggests that courts may divine illicit purpose
by a careful review of the record and the process by which a legislature
arrived at the decision to take--without specifying what courts should look for
in a case with different facts, how they will know if they have found it, and
what to do if they do not. Whatever the details of Justice Kennedy’s
as-yet-undisclosed test, it is difficult to envision anyone but the “stupid
staff[er]” failing it. The trouble with economic
development takings is that private benefit and incidental public benefit are,
by definition, merged and mutually reinforcing. In this case, for example, any
boon for Pfizer or the plan’s developer is difficult to disaggregate from the
promised public gains in taxes and jobs. …
Even if there
were a practical way to isolate the motives behind a given taking, the gesture
toward a purpose test is theoretically flawed. If it is true that incidental
public benefits from new private use are enough to ensure the “public purpose”
in a taking, why should it matter, as far as the Fifth Amendment is concerned,
what inspired the taking in the first place? How much the
government does or does not desire to benefit a favored private party has no
bearing on whether an economic development taking will or will not generate
secondary benefit for the public. And whatever the reason for a given
condemnation, the effect is the same from the constitutional perspective--
private property is forcibly relinquished to new private ownership.
A second
proposed limitation is implicit in the Court’s opinion. The logic of today’s
decision is that eminent domain may only be used to upgrade-- not downgrade--property.
At best this makes the Public Use Clause redundant with the Due Process Clause,
which already prohibits irrational government action. The Court rightfully
admits, however, that the judiciary cannot get bogged down in predictive
judgments about whether the public will actually be better off after a property
transfer. In any event, this constraint has no realistic import. For who among
us can say she already makes the most productive or attractive possible use of
her property? The specter of condemnation hangs over all property. Nothing is
to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home
with a shopping mall, or any farm with a factory. …
Finally, in a
coda, the Court suggests that property owners should turn to the States, who
may or may not choose to impose appropriate limits on economic development
takings. This is an abdication of our responsibility. States play many
important functions in our system of dual sovereignty, but compensating for our
refusal to enforce properly the Federal Constitution (and a provision meant to
curtail state action, no less) is not among them. …
Any property
may now be taken for the benefit of another private party, but the fallout from
this decision will not be random. The beneficiaries are likely to be those
citizens with disproportionate influence and power in the political process,
including large corporations and development firms. As for the victims, the
government now has license to transfer property from those with fewer resources
to those with more. The Founders cannot have intended this perverse result. ...
Justice Thomas, dissenting.
Long
ago, William Blackstone wrote that “the law of the land ...
postpone[s] even public necessity to the sacred and inviolable rights of
private property.” The Framers embodied that principle in the Constitution,
allowing the government to take property not for “public necessity,” but
instead for “public use.” Defying this understanding, the Court replaces the
Public Use Clause with a “[P]ublic [P]urpose” Clause, a restriction that is satisfied, the Court
instructs, so long as the purpose is “legitimate” and the means “not
irrational.” This deferential shift in phraseology enables the Court to hold,
against all common sense, that a costly urban-renewal project whose stated
purpose is a vague promise of new jobs and increased tax revenue, but which is
also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”
I cannot agree.
If such “economic development” takings are for a “public use,”
any taking is, and the Court has erased the Public Use Clause from our
Constitution, as Justice O’Connor powerfully argues in dissent. I do not
believe that this Court can eliminate liberties expressly enumerated in the
Constitution and therefore join her dissenting opinion. Regrettably, however,
the Court’s error runs deeper than this. Today’s decision is simply the latest
in a string of our cases construing the Public Use Clause to be a virtual
nullity, without the slightest nod to its original meaning. In my view, the
Public Use Clause, originally understood, is a meaningful limit on the
government’s eminent domain power. Our cases have strayed from the Clause’s
original meaning, and I would reconsider them. …
In my view, it
is “imperative that the Court maintain absolute fidelity to” the [Takings]
Clause’s express limit on the power of the government over the individual, no
less than with every other liberty expressly enumerated in the Fifth Amendment
or the Bill of Rights more generally. …
The most
natural reading of the Clause is that it allows the government to take property
only if the government owns, or the public has a legal right to use, the
property, as opposed to taking it for any public purpose or necessity
whatsoever. At the time of the founding, dictionaries primarily defined the
noun “use” as “[t]he act of employing any thing to any purpose.” The term
“use,” moreover, “is from the Latin utor,
which means ‘to use, make use of, avail one’s self of, employ, apply, enjoy,
etc.” When the government takes property and gives it to a private individual,
and the public has no right to use the property, it strains language to say
that the public is “employing” the property, regardless of the incidental
benefits that might accrue to the public from the private use. The term “public
use,” then, means that either the government or its citizens as a whole must
actually “employ” the taken property. …
Tellingly, the
phrase “public use” contrasts with the very different phrase “general Welfare”
used elsewhere in the Constitution. The Framers would have used some such
broader term if they had meant the Public Use Clause to
have a similarly sweeping scope.…The Constitution’s
text, in short, suggests that the Takings Clause authorizes the taking of
property only if the public has a right to employ it, not if the public
realizes any conceivable benefit from the taking. ...
The public
purpose interpretation of the Public Use Clause also unnecessarily duplicates a
similar inquiry required by the Necessary and Proper Clause. The Takings Clause
is a prohibition, not a grant of power: The Constitution
does not expressly grant the Federal Government the power to take property for
any public purpose whatsoever. Instead, the Government may take property only
when necessary and proper to the exercise of an expressly enumerated power. For
a law to be within the Necessary and Proper Clause, as I have elsewhere
explained, it must bear an “obvious, simple, and direct relation” to an
exercise of Congress’ enumerated powers, and it must not “subvert basic
principles of” constitutional design. In other words, a taking is permissible
under the Necessary and Proper Clause only if it serves a valid public purpose.
Interpreting the Public Use Clause likewise to limit the government to take
property only for sufficiently public purposes replicates this inquiry. If this
is all the Clause means, it is, once again, surplusage.
The Clause is thus most naturally read to concern whether the property is used
by the public or the government, not whether the purpose
of the taking is legitimately public. …
Our current
Public Use Clause jurisprudence, as the Court notes, has rejected this natural
reading of the Clause. The Court adopted its modern reading blindly, with
little discussion of the Clause’s history and original meaning, in two distinct
lines of cases: first, in cases adopting the “public purpose” interpretation of
the Clause, and second, in cases deferring to legislatures’ judgments regarding
what constitutes a valid public purpose. Those questionable cases converged in
the boundlessly broad and deferential conception of “public use” adopted by
this Court in Berman v. Parker … (1954), and Hawaii Housing Authority
v. Midkiff … (1984), cases that take center stage
in the Court’s opinion. The weakness of those two lines of cases, and
consequently Berman and Midkiff,
fatally undermines the doctrinal foundations of the Court’s decision. Today’s
questionable application of these cases is further proof that the “public
purpose” standard is not susceptible of principled application. This Court’s
reliance by rote on this standard is ill advised and should be reconsidered. …
The “public
purpose” test applied by Berman and Midkiff…cannot
be applied in principled manner. “When we depart from the
natural import of the term ‘public use,’ and substitute for the simple idea of
a public possession and occupation, that of public utility, public interest,
common benefit, general advantage or convenience ... we are afloat without any
certain principle to guide us.” Once one permits takings for public
purposes in addition to public uses, no coherent principle limits what could
constitute a valid public use-at least, none beyond Justice O’Connor’s
(entirely proper) appeal to the text of the Constitution itself. I share the Court’s skepticism about a public use standard
that requires courts to second-guess the policy wisdom of public works
projects. The “public purpose” standard this Court has adopted, however,
demands the use of such judgment, for the Court concedes that the Public Use
Clause would forbid a purely private taking. It is difficult to imagine how a
court could find that a taking was purely private except by determining that
the taking did not, in fact, rationally advance the public interest. The Court
is therefore wrong to criticize the “actual use” test as “difficult to
administer.” It is far easier to analyze whether the government owns or the
public has a legal right to use the taken property than to ask whether the
taking has a “purely private purpose”--unless the Court means to eliminate
public use scrutiny of takings entirely. Obliterating a provision of the
Constitution, of course, guarantees that it will not be misapplied.
For all these
reasons, I would revisit our Public Use Clause cases and consider returning to
the original meaning of the Public Use Clause: that the government may take
property only if it actually uses or gives the public a legal right to use the
property. …