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KELO v. CITY OF Supreme Court of the Stevens, J. In 2000, the city of I The city of 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. See Conn. Gen. Stat. § 8-188 (2005). The
city council also authorized the NLDC to purchase property or to acquire
property by exercising eminent domain in the City’s name. § 8-193. 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.[3] II 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). 2 App. to Pet. for Cert. 343-350.[4] 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. It began by upholding the lower court’s determination that the takings
were authorized by chapter 132, the State’s municipal development statute.
See Conn. Gen. Stat. § 8-186 et seq (2005). That statute expresses a
legislative determination that the taking of land, even developed land, as
part of an economic development project is a “public use” and in the “public
interest.” 268 Finally, adhering
to its precedents, the court went on to determine, first, whether the takings
of the particular properties at issue were “reasonably necessary” to
achieving the City’s intended public use, id., at 82, 843 A. 2d, at
552-553, and, second, whether the takings were for “reasonably foreseeable
needs,” id., at 93, 843 A. 2d, at 558-559. The court upheld the trial
court’s factual findings as to parcel 3, but reversed the trial court as to
parcel 4A, agreeing with the City that the intended use of this land was
sufficiently definite and had been given “reasonable attention” during the
planning process. The three
dissenting justices would have imposed a “heightened” standard of judicial
review for takings justified by economic development. Although they agreed
that the plan was intended to serve a valid public use, they would have found
all the takings unconstitutional because the City had failed to adduce “clear
and convincing evidence” that the economic benefits of the plan would in fact
come to pass. Id., at 144, 146, 843 A. 2d, at 587, 588 (Zarella, J.,
joined by Sullivan, C. J., and Katz, J., concurring in part and dissenting in
part). We granted certiorari
to determine whether a city’s decision to take property for the purpose of
economic development satisfies the “public use” requirement of the Fifth
Amendment. 542 III 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. See Midkiff, 467 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.” 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, 348 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. “We do not sit to determine whether a particular housing
project is or is not desirable. The concept of the public welfare is broad
and inclusive. . . . The values it represents are spiritual as well as
physical, aesthetic as well as monetary. It is within the power of the
legislature to determine that the community should be beautiful as well as
healthy, spacious as well as clean, well-balanced as well as carefully
patrolled. In the present case, the Congress and its authorized agencies have
made determinations that take into account a wide variety of values. It is
not for us to reappraise them. If those who govern the In Hawaii
Housing Authority v. Midkiff, 467 In that same Term
we decided another public use case that arose in a purely economic context.
In Ruckelshaus v. Monsanto Co., 467 U.S. 986, 81 L. Ed.
2d 815, 104 S. Ct. 2862 (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, id., at 1014, 81 L. Ed. 2d
815, 104 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. See Hairston
v. Danville & Western R. Co., 208 U.S. 598, 606-607, 52 L. Ed.
637, 28 S. Ct. 331 (1908) (noting that these needs were likely to vary
depending on a State’s “resources, the capacity of the soil, the relative
importance of industries to the general public welfare, and the
long-established methods and habits of the people”).[11]
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. IV 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. In our
cases upholding takings that facilitated agriculture and mining, for example,
we emphasized the importance of those industries to the welfare of the States
in question, see, e.g., Strickley, 200 U.S. 527, 50 L. Ed. 581,
26 S. Ct. 301; in Berman, we endorsed the purpose of transforming a
blighted area into a “well-balanced” community through redevelopment, 348
U.S., at 33, 99 L. Ed. 27, 75 S. Ct. 98;[13]
in Midkiff, we upheld the interest in breaking up a land oligopoly
that “created artificial deterrents to the normal functioning of the State’s
residential land market,” 467 U.S., at 242, 81 L. Ed. 2d 186, 104 S. Ct.
2321; and in Monsanto, we accepted Congress’ purpose of eliminating a “significant
barrier to entry in the pesticide market,” 467 U.S., at 1014-1015, 81 L. Ed.
2d 815, 104 S. Ct. 2862. 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. 467 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,[17]
the hypothetical cases posited by petitioners can be confronted if and when
they arise.[18]
They do not warrant the crafting of an artificial restriction on the concept
of public use.[19] 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.” Midkiff, 467 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.” Berman,
348 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.[21]
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,[22]
while others are expressed in state eminent domain statutes that carefully
limit the grounds upon which takings may be exercised.[23]
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.[24]
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. It is so ordered. |
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Kennedy, J., concurring. I join the opinion for the
Court and add these further observations. This Court has
declared that a taking should be upheld as consistent with the Public Use
Clause, U.S. Const., Amdt. 5., as long as it is “rationally related to a
conceivable public purpose.” Hawaii Housing Authority v. Midkiff,
467 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. See Cleburne v. Cleburne Living Center, Inc.,
473 U.S. 432, 446-447, 450, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985); Department
of Agriculture v. Moreno, 413 U.S. 528, 533-536, 37 L. Ed. 2d 782,
93 S. Ct. 2821 (1973). 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.” 2 App. to
Pet. for Cert. 263. See also ante, at ____, 162 L. Ed. 2d, at 450. A court confronted
with a plausible accusation of impermissible favoritism to private parties
should treat the objection as a serious one and review the record to see if
it has merit, though with the presumption that the government’s actions were
reasonable and intended to serve a public purpose. Here, the trial court
conducted a careful and extensive inquiry into “whether, in fact, the
development plan is of primary benefit to . . . the developer [i.e.,
Corcoran Jennison], and private businesses which may eventually locate in the
plan area [e.g., Pfizer], and in that regard, only of incidental
benefit to the city.” 2 App. to Pet. for Cert. 261. The trial court
considered testimony from government officials and corporate officers; id.,
at 266-271; documentary evidence of communications between these parties, ibid.;
respondents’ awareness of New London’s depressed economic condition and
evidence corroborating the validity of this concern, id., at 272-273,
278-279; the substantial commitment of public funds by the State to the
development project before most of the private beneficiaries were known, id.,
at 276; evidence that respondents reviewed a variety of development plans and
chose a private developer from a group of applicants rather than picking out
a particular transferee beforehand, id., at 273, 278; and the fact
that the other private beneficiaries of the project are still unknown because
the office space proposed to be built has not yet been rented, id., at
278. The trial court
concluded, based on these findings, that benefiting Pfizer was not “the
primary motivation or effect of this development plan “; instead, “the
primary motivation for [respondents] was to take advantage of Pfizer’s
presence.” Petitioners and
their amici argue that any taking justified by the promotion of
economic development must be treated by the courts as per se invalid,
or at least presumptively invalid. Petitioners overstate the need for such a
rule, however, by making the incorrect assumption that review under Berman
and Midkiff imposes no meaningful judicial limits on the government’s
power to condemn any property it likes. A broad per se rule or a
strong presumption of invalidity, furthermore, would prohibit a large number
of government takings that have the purpose and expected effect of conferring
substantial benefits on the public at large and so do not offend the Public
Use Clause. 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. Cf. Eastern
Enterprises v. Apfel, 524 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
minimis. 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. * * * For the foregoing reasons, I join in the Court’s opinion. |
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O’Connor, J., with whom Rehnquist,
C.J., Scalia and Thomas, J.J.,
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, 3 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. I Petitioners are
nine resident or investment owners of 15 homes in the In February 1998,
Pfizer Inc., the pharmaceuticals manufacturer, announced that it would build
a global research facility near the Petitioners own
properties in two of the plan’s seven parcels--Parcel 3 and Parcel 4A. Under
the plan, Parcel 3 is slated for the construction of research and office
space as a market develops for such space. It will also retain the existing
Italian Dramatic Club (a private cultural organization) though the homes of
three plaintiffs in that parcel are to be demolished. Parcel 4A is slated,
mysteriously, for “‘park support.’” To save their
homes, petitioners sued II The Fifth
Amendment to the Constitution, made applicable to the States by the
Fourteenth Amendment, provides that “private property [shall not] be taken
for public use, without just compensation.” 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.” Wright v. 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].” 1 Records of the Federal Convention of 1787, p
302 (M. Farrand ed. 1934). 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. While the Takings
Clause presupposes that government can take private property without the
owner’s consent, the just compensation requirement spreads the cost of
condemnations and thus “prevents the public from loading upon one individual
more than his just share of the burdens of government.” Monongahela Nav.
Co. v. 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. See 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. See, e.g., Old Dominion Land Co. v. United
States, 269 U.S. 55, 70 L. Ed. 162, 46 S. Ct. 39 (1925); Rindge Co.
v. County of Los Angeles, 262 U.S. 700, 67 L. Ed. 1186, 43 S. Ct. 689
(1923)rty is destined for subsequent
private use. See, e.g., Berman v. Parker, 348 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 Berman,
we upheld takings within a blighted neighborhood of Washington, D. C. The
neighborhood had so deteriorated that, for example, 64.3% of its dwellings
were beyond repair. 348 In Midkiff,
we upheld a land condemnation scheme in 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.’” Id., at 240-241, 81 L. Ed. 2d 186, 104 S. Ct. 2321 (quoting United
States ex rel. TVA v. Welch, 327 U.S. 546, 552, 90 L. Ed. 843, 66
S. Ct. 715 (1946)); see Berman, supra, at 32, 99 L. Ed. 27, 75
S. Ct. 98 ( “[T]he legislature, not the judiciary, is the main guardian of
the public needs to be served by social legislation”); see also Lingle
v. Chevron U.S.A., Inc., 544 U.S. __, 161 L. Ed. 2d 876, 125 S. Ct.
2074 (2005). 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. Midkiff, supra, at 242, 81 L. Ed. 2d 186,
104 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.” Midkiff, 467 U.S., at 245, 81 L. Ed. 2d 186, 104 S. Ct.
2321; id., at 241, 81 L. Ed. 2d 186, 104 S. Ct. 2321 ( “[T]he Court’s
cases have repeatedly stated that ‘one person’s property may not be taken for
the benefit of another private person without a justifying public purpose,
even though compensation be paid’” (quoting Thompson v. Consolidated
Gas Util. Corp., 300 U.S. 55, 80, 81 L. Ed. 510, 57 S. Ct. 364 (1937)));
see also Missouri Pacific R. Co. v. Nebraska, 164 U.S. 403,
417, 41 L. Ed. 489, 17 S. Ct. 130 (1896). 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.” Midkiff, supra,
at 240, 81 L. Ed. 2d 186, 104 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. Berman, supra,
at 28-29, 99 L. Ed. 27, 75 S. Ct. 98; Midkiff, supra, at 232,
81 L. Ed. 2d 186, 104 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. There is a sense
in which this troubling result follows from errant language in Berman
and Midkiff. In discussing whether takings within a blighted
neighborhood were for a public use, Berman began by observing: “We
deal, in other words, with what traditionally has been known as the police
power.” 348 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. Ante, at ____, 162 L. Ed. 2d,
at 450. 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. Ante, at ____ - ____,
162 L. Ed. 2d, at 459-460 (concurring opinion). Whatever the details of
Justice Kennedy’s as-yet-undisclosed test, it is difficult to envision anyone
but the “stupid staff[er]” failing it. See Lucas v. 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. See Lingle,
544 The Court also
puts special emphasis on facts peculiar to this case: The NLDC’s plan is the
product of a relatively careful deliberative process; it proposes to use
eminent domain for a multipart, integrated plan rather than for isolated
property transfer; it promises an array of incidental benefits (even
aesthetic ones), not just increased tax revenue; it comes on the heels of a
legislative determination that New London is a depressed municipality. See, e.g.,
ante, at ____, 162 L. Ed. 2d, at 456 ( “[A] one-to-one transfer of
property, executed outside the confines of an integrated development plan, is
not presented in this case”). Justice Kennedy, too, takes great comfort in
these facts. Ante, at ____, 162 L. Ed. 2d, at 460 (concurring
opinion). But none has legal significance to blunt the force of today’s
holding. If legislative prognostications about the secondary public benefits
of a new use can legitimate a taking, there is nothing in the Court’s rule or
in Justice Kennedy’s gloss on that rule to prohibit property transfers
generated with less care, that are less comprehensive, that happen to result
from less elaborate process, whose only projected advantage is the incidence
of higher taxes, or that hope to transform an already prosperous city into an
even more prosperous one. 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. Ante, at ____, 162 L. Ed. 2d, at 457-458. 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. * * * It was possible
after Berman and Midkiff to imagine unconstitutional transfers
from A to B. Those decisions endorsed government intervention when private
property use had veered to such an extreme that the public was suffering as a
consequence. Today nearly all real property is susceptible to condemnation on
the Court’s theory. In the prescient words of a dissenter from the infamous
decision in Poletown, “[n]ow that we have authorized local legislative
bodies to decide that a different commercial or industrial use of property
will produce greater public benefits than its present use, no homeowner’s,
merchant’s or manufacturer’s property, however productive or valuable to its
owner, is immune from condemnation for the benefit of other private interests
that will put it to a ‘higher’ use.” 410 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. “[T]hat alone is a just government,” wrote James Madison, “which
impartially secures to every man, whatever is his own.” For the
National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James
Madison 266 (R. Rutland et al. eds. 1983). I would hold that
the takings in both Parcel 3 and Parcel 4A are unconstitutional, reverse the
judgment of the Supreme Court of Connecticut, and remand for further
proceedings. 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.” 1
Commentaries on the Laws of England 134-135 (1765) (hereinafter Blackstone).
The Framers embodied that principle in the Constitution, allowing the
government to take property not for “public necessity,” but instead for “public
use.” Amdt. 5. Defying this understanding, the Court replaces the Public Use
Clause with a “‘[P]ublic [P]urpose’” Clause, ante, at ____ - ____, 162
L. Ed. 2d, at 451-452 (or perhaps the “Diverse and Always Evolving Needs of
Society” Clause, ante, at ____, 162 L. Ed. 2d, at 451 (capitalization
added)), a restriction that is satisfied, the Court instructs, so long as the
purpose is “legitimate” and the means “not irrational,” ante, at ____,
162 L. Ed. 2d, at 456 (internal quotation marks omitted). 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. Ante, at ____ - ____,
____ - ____, 162 L. Ed. 2d, at 460-461, 464-468. 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. I The Fifth
Amendment provides: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process, of law; nor shall private property be taken for public use, without just compensation.” (Emphasis added.) It is the last of
these liberties, the Takings Clause, that is at issue in this case. In my
view, it is “imperative that the Court maintain absolute fidelity to” the
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. Shepard v. Though one
component of the protection provided by the Takings Clause is that the
government can take private property only if it provides “just compensation” for
the taking, the Takings Clause also prohibits the government from taking property
except “for public use.” Were it otherwise, the Takings Clause would either
be meaningless or empty. If the Public Use Clause served no function other
than to state that the government may take property through its eminent
domain power--for public or private uses--then it would be surplusage. See ante,
at ____ - ____, 162 L. Ed. 2d, at 462 (O’Connor, J., dissenting); see also Marbury
v. Madison, 5 U.S. 137, 1 Cranch 137, 174, 2 L. Ed. 60 (1803) ( “It
cannot be presumed that any clause in the constitution is intended to be
without effect”); Myers v. United States, 272 U.S. 52, 151, 71
L. Ed. 160, 47 S. Ct. 21 (1926). Alternatively, the Clause could distinguish
those takings that require compensation from those that do not. That
interpretation, however, “would permit private property to be taken or
appropriated for private use without any compensation whatever.” Cole
v. 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.” 2 S. Johnson, A Dictionary of the
English Language 2194 (4th ed. 1773) (hereinafter Johnson). 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.” J. Lewis, Law of Eminent Domain § 165, p
224, n 4 (1888) (hereinafter Lewis). 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. See id., at 223 (reviewing founding-era dictionaries). Granted, another
sense of the word “use” was broader in meaning, extending to “[c]onvenience” or
“help,” or “[q]ualities that make a thing proper for any purpose.” 2 Johnson
2194. Nevertheless, read in context, the term “public use” possesses the
narrower meaning. Elsewhere, the Constitution twice employs the word “use,” both
times in its narrower sense. Claeys, Public-Use Limitations and Natural
Property Rights, 2004 Mich. St. L. Rev. 877, 897 (hereinafter Public Use
Limitations). Article 1, § 10 provides that “the net Produce of all Duties
and Imposts, laid by any State on Imports or Exports, shall be for the Use of
the Treasury of the United States,” meaning the Treasury itself will control
the taxes, not use it to any beneficial end. And Article I, § 8 grants
Congress power “[t]o raise and support Armies, but no Appropriation of Money
to that Use shall be for a longer Term than two Years.” Here again, “use” means
“employed to raise and support Armies,” not anything directed to achieving
any military end. The same word in the Public Use Clause should be
interpreted to have the same meaning. Tellingly, the
phrase “public use” contrasts with the very different phrase “general Welfare”
used elsewhere in the Constitution. See ibid. (“Congress shall have
Power To . . . provide for the common Defence and general Welfare of the The Constitution’s
common-law background reinforces this understanding. The common law provided
an express method of eliminating uses of land that adversely impacted the
public welfare: nuisance law. Blackstone and Kent, for instance, both
carefully distinguished the law of nuisance from the power of eminent domain.
Compare 1 Blackstone 135 (noting government’s power to take private property
with compensation), with 3 id., at 216 (noting action to remedy “public
. . . nuisances, which affect the public and are an annoyance to all
the king’s subjects”); see also 2 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.
See Kohl v. United States, 91 U.S. 367, 371-372, 23 L. Ed. 449
(1876) (noting Federal Government’s power under the Necessary and Proper
Clause to take property “needed for forts, armories, and arsenals, for
navy-yards and light-houses, for custom-houses, post-offices, and
court-houses, and for other public uses”). 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, Sabri
v. United States, 541 U.S. 600, 613, 158 L. Ed. 2d 891, 124 S. Ct.
1941 (2004) (Thomas, J., concurring in judgment), and it must not “subvert
basic principles of” constitutional design, Gonzales v. Raich,
ante, at __, 545 U.S. 1, 162 L. Ed. 2d 1, 125 S. Ct. 2195 (Thomas, J.,
dissenting). 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. See supra, at ____, 162
L. Ed. 2d, at 469. 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. II Early American
eminent domain practice largely bears out this understanding of the Public
Use Clause. This practice concerns state limits on eminent domain power, not
the Fifth Amendment, since it was not until the late 19th century that the
Federal Government began to use the power of eminent domain, and since the
Takings Clause did not even arguably limit state power until after the
passage of the Fourteenth Amendment. See Note, The Public Use Limitation on
Eminent Domain: An Advance Requiem, 58 Yale L. J. 567, 599-600, and nn. 3-4
(1949); Barron ex rel. Tiernan v. Mayor of Baltimore, 32 U.S.
243, 7 Pet. 243, 250-251, 8 L. Ed. 672 (1833) (holding the Takings Clause
inapplicable to the States of its own force). Nevertheless, several early
state constitutions at the time of the founding likewise limited the power of
eminent domain to “public uses.” See Sales 367-369, and n 137 (emphasis
deleted). Their practices therefore shed light on the original meaning of the
same words contained in the Public Use Clause. States employed
the eminent domain power to provide quintessentially public goods, such as
public roads, toll roads, ferries, canals, railroads, and public parks. Lewis
§§ 166, 168-171, 175, at 227-228, 234-241, 243. Though use of the eminent
domain power was sparse at the time of the founding, many States did have
so-called Mill Acts, which authorized the owners of grist mills operated by
water power to flood upstream lands with the payment of compensation to the
upstream landowner. See, e.g., id., § 178, at 245-246; Head v. Amoskeag
Mfg. Co., 113 U.S. 9, 16-19, 28 L. Ed. 889, 5 S. Ct. 441, and n. (1885).
Those early grist mills “were regulated by law and compelled to serve the
public for a stipulated toll and in regular order,” and therefore were
actually used by the public. Lewis § 178, at 246, and n 3; see also Head,
supra, at 18-19, 28 L. Ed. 889, 5 S. Ct. 441. They were common
carriers--quasi-public entities. These were “public uses” in the fullest
sense of the word, because the public could legally use and benefit from them
equally. See Public Use Limitations 903 (common-carrier status traditionally
afforded to “private beneficiaries of a state franchise or another form of
state monopoly, or to companies that operated in conditions of natural
monopoly”). To be sure, some
early state legislatures tested the limits of their state-law eminent domain
power. Some States enacted statutes allowing the taking of property for the
purpose of building private roads. See Lewis § 167, at 230. These statutes
were mixed; some required the private landowner to keep the road open to the
public, and others did not. See id., § 167, at 230-234. Later in the
19th century, moreover, the Mill Acts were employed to grant rights to
private manufacturing plants, in addition to grist mills that had
common-carrier duties. See, e.g., M. Horwitz, The Transformation of
American Law 1780-1860, pp 51-52 (1977). These early uses
of the eminent domain power are often cited as evidence for the broad “public
purpose” interpretation of the Public Use Clause, see, e.g., ante, at
____, n 8, 162 L. Ed. 2d, at 450-451 (majority opinion); Brief for
Respondents 30; Brief for American Planning Assn. et al. as Amici Curiae
at 6-7, but in fact the constitutionality of these exercises of eminent
domain power under state public use restrictions was a hotly contested
question in state courts throughout the 19th and into the 20th century. Some
courts construed those clauses to authorize takings for public purposes, but
others adhered to the natural meaning of “public use.”[26]
As noted above, the earliest Mill Acts were applied to entities with duties
to remain open to the public, and their later extension is not deeply
probative of whether that subsequent practice is consistent with the original
meaning of the Public Use Clause. See McIntyre v. Ohio Elections
Comm’n, 514 III Our current Public
Use Clause jurisprudence, as the Court notes, has rejected this natural
reading of the Clause. Ante, at ____ - ____, 162 L. Ed. 2d, at
450-452. 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, 348 U.S. 26, 99 L. Ed. 27, 75 S. Ct.
98 (1954), and Hawaii Housing Authority v. Midkiff, 467 U.S.
229, 81 L. Ed. 2d 186, 104 S. Ct. 2321 (1984), cases that take center stage
in the Court’s opinion. See ante, ____ - ____, 162 L. Ed. 2d, at
452-453. 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. A As the Court
notes, the “public purpose” interpretation of the Public Use Clause stems
from Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112,
161-162, 41 L. Ed. 369, 17 S. Ct. 56 (1896). Ante, at ____, 162 L. Ed.
2d, at 452-453. The issue in Bradley was whether a condemnation for
purposes of constructing an irrigation ditch was for a public use. 164 This Court’s cases
followed Bradley’s test with little analysis. In Clark v. Nash,
198 B A second line of
this Court’s cases also deviated from the Public Use Clause’s original
meaning by allowing legislatures to define the scope of valid “public uses.” United
States v. Gettysburg Electric R. Co., 160 U.S. 668, 40 L. Ed. 576,
16 S. Ct. 427 (1896), involved the question whether Congress’ decision to
condemn certain private land for the purpose of building battlefield memorials
at Gettysburg, Pennsylvania, was for a public use. There is no
justification, however, for affording almost insurmountable deference to
legislative conclusions that a use serves a “public use.” To begin with, a
court owes no deference to a legislature’s judgment concerning the
quintessentially legal question of whether the government owns, or the public
has a legal right to use, the taken property. Even under the “public purpose”
interpretation, moreover, it is most implausible that the Framers intended to
defer to legislatures as to what satisfies the Public Use Clause, uniquely
among all the express provisions of the Bill of Rights. We would not defer to
a legislature’s determination of the various circumstances that establish,
for example, when a search of a home would be reasonable, see, e.g., Payton
v. New York, 445 U.S. 573, 589-590, 63 L. Ed. 2d 639, 100 S. Ct. 1371
(1980), or when a convicted double-murderer may be shackled during a
sentencing proceeding without on-the-record findings, see Deck v. Missouri,
544 U.S. 622, 161 L. Ed. 2d 953, 125 S. Ct. 2007 (2005), or when state law
creates a property interest protected by the Due Process Clause, see, e.g.,
Castle Rock v. Gonzales, post, at ______, 162 L. Ed. 2d 658, 125
S. Ct. 2796; ; Board of Regents of State Colleges v. Roth, 408
U.S. 564, 576, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Goldberg v. Kelly,
397 U.S. 254, 262-263, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970). Still worse, it is
backwards to adopt a searching standard of constitutional review for
nontraditional property interests, such as welfare benefits, see, e.g.,
Goldberg, supra, while deferring to the legislature’s
determination as to what constitutes a public use when it exercises the power
of eminent domain, and thereby invades individuals’ traditional rights in
real property. The Court has elsewhere recognized “the overriding respect for
the sanctity of the home that has been embedded in our traditions since the
origins of the Republic,” Payton, supra, at 601, 63 L. Ed. 2d
639, 100 C These two
misguided lines of precedent converged in Berman v. Parker, 348
More
fundamentally, Berman and Midkiff erred by equating the eminent
domain power with the police power of States. See Midkiff, 467 The “public
purpose” test applied by Berman and Midkiff also 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.” Bloodgood v. Mohawk & Hudson R. Co., 18 Wend.
9, 60-61 (NY 1837) (opinion of Tracy, Sen.). 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. See ante,
at ____ - ____, ____ - ____, 162 L. Ed. 2d, at 460-461, 464-468 (dissenting
opinion). I share the Court’s skepticism about a public use standard that
requires courts to second-guess the policy wisdom of public works projects. Ante,
at ____ - ____, 162 L. Ed. 2d, at 456-457. 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. Ante,
at ____ - ____, 162 L. Ed. 2d, at 450-451. 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. Cf. ante,
at ____ - ____, 162 L. Ed. 2d, at 465-466 (O’Connor, J., dissenting) (noting
the complicated inquiry the Court’s test requires). The Court is therefore
wrong to criticize the “actual use” test as “difficult to administer.” Ante,
at ____, 162 L. Ed. 2d, at 451. 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. Ante,
at ____ - ____, ____ - ____, 162 L. Ed. 2d, at 450-451, 456-457. 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. IV The consequences
of today’s decision are not difficult to predict, and promise to be harmful.
So-called “urban renewal” programs provide some compensation for the
properties they take, but no compensation is possible for the subjective
value of these lands to the individuals displaced and the indignity inflicted
by uprooting them from their homes. Allowing the government to take property
solely for public purposes is bad enough, but extending the concept of public
purpose to encompass any economically beneficial goal guarantees that these
losses will fall disproportionately on poor communities. Those communities
are not only systematically less likely to put their lands to the highest and
best social use, but are also the least politically powerful. If ever there
were justification for intrusive judicial review of constitutional provisions
that protect “discrete and insular minorities,” United States v. Carolene
Products Co., 304 U.S. 144, 152, n. 4, 82 L. Ed. 1234, 58 S. Ct. 778
(1938), surely that principle would apply with great force to the powerless
groups and individuals the Public Use Clause protects. The deferential
standard this Court has adopted for the Public Use Clause is therefore deeply
perverse. It encourages “those citizens with disproportionate influence and power
in the political process, including large corporations and development firms”
to victimize the weak. Ante, at ____, 162 L. Ed. 2d, at 468 (O’Connor,
J., dissenting). Those incentives
have made the legacy of this Court’s “public purpose” test an unhappy one. In
the 1950’s, no doubt emboldened in part by the expansive understanding of “public
use” this Court adopted in Berman, cities “rushed to draw plans” for
downtown development. B. Frieden & L. Sagalayn, Downtown, Inc. How * * * The Court relies
almost exclusively on this Court’s prior cases to derive today’s
far-reaching, and dangerous, result. See ante, at ____ - ____, 162 L.
Ed. 2d, at 451-453. But the principles this Court should employ to dispose of
this case are. For the reasons I have given, and for
the reasons given in Justice O’Connor’s dissent, the conflict of principle
raised by this boundless use of the eminent domain power should be resolved
in petitioners’ favor. I would reverse the judgment of the Connecticut
Supreme Court. |
Please send comments to Rosemary Spang
URL:
http://www.courses.law.harvard.edu/faculty/cdonahue/courses/prop/mat/Kelo.html
last modified: 08/08/09
Copyright © 2007. Charles Donahue, Jr.
[1] “[N]or
shall private property be taken for public use, without just compensation.”
[2] Various state agencies studied the project’s economic, environmental, and social ramifications. As part of this process, a team of consultants evaluated six alternative development proposals for the area, which varied in extensiveness and emphasis. The Office of Planning and Management, one of the primary state agencies undertaking the review, made findings that the project was consistent with relevant state and municipal development policies. See 1 App. 89-95.
[3] In the remainder of the opinion we will differentiate between the City and the NLDC only where necessary.
[4] While
this litigation was pending before the Superior Court, the NLDC announced that
it would lease some of the parcels to private developers in exchange for their
agreement to develop the land according to the terms of the development plan.
Specifically, the NLDC was negotiating a 99-year ground lease with Corcoran
Jennison, a developer selected from a group of applicants. The negotiations
contemplated a nominal rent of $1 per year, but no agreement had yet been
signed. See 268
[5] See
also Calder v. Bull, 3
[6] See 268 Conn., at 159, 843 A. 2d, at 595 (Zarella, J., concurring in part and dissenting in part) ( “The record clearly demonstrates that the development plan was not intended to serve the interests of Pfizer, Inc., or any other private entity, but rather, to revitalize the local economy by creating temporary and permanent jobs, generating a significant increase in tax revenue, encouraging spin-off economic activities and maximizing public access to the waterfront”). And while the City intends to transfer certain of the parcels to a private developer in a long-term lease--which developer, in turn, is expected to lease the office space and so forth to other private tenants--the identities of those private parties were not known when the plan was adopted. It is, of course, difficult to accuse the government of having taken A’s property to benefit the private interests of B when the identity of B was unknown.
[7] See, e.g., Dayton Gold & Silver Mining Co. v. Seawell, 11 Nev. 394, 410 (1876) ( “If public occupation and enjoyment of the object for which land is to be condemned furnishes the only and true test for the right of eminent domain, then the legislature would certainly have the constitutional authority to condemn the lands of any private citizen for the purpose of building hotels and theaters. Why not? A hotel is used by the public as much as a railroad. The public have the same right, upon payment of a fixed compensation, to seek rest and refreshment at a public inn as they have to travel upon a railroad”).
[8] From
upholding the Mill Acts (which authorized manufacturers dependent on
power-producing dams to flood upstream lands in exchange for just
compensation), to approving takings necessary for the economic development of
the West through mining and irrigation, many state courts either circumvented
the “use by the public” test when necessary or abandoned it completely. See
Nichols, The Meaning of Public Use in the Law of Eminent Domain, 20 B.U.L. Rev.
615, 619-624 (1940) (tracing this development and collecting cases). For
example, in rejecting the “use by the public” test as overly restrictive, the
Nevada Supreme Court stressed that “[m]ining is the greatest of the industrial
pursuits in this state. All other interests are subservient to it. Our
mountains are almost barren of timber, and our valleys could never be made
profitable for agricultural purposes except for the fact of a home market
having been created by the mining developments in different sections of the
state. The mining and milling interests give employment to many men, and the benefits
derived from this business are distributed as much, and sometimes more, among
the laboring classes than with the owners of the mines and mills. . . . The
present prosperity of the state is entirely due to the mining developments
already made, and the entire people of the state are directly interested in
having the future developments unobstructed by the obstinate action of any
individual or individuals.” Dayton Gold & Silver Mining Co., 11
[9] See also Clark v. Nash, 198 U.S. 361, 49 L. Ed. 1085, 25 S. Ct. 676 (1905) (upholding a statute that authorized the owner of arid land to widen a ditch on his neighbor’s property so as to permit a nearby stream to irrigate his land).
[10] See, e.g., Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30, 32, 60 L. Ed. 507, 36 S. Ct. 234 (1916) ( “The inadequacy of use by the general public as a universal test is established”); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1014-1015, 81 L. Ed. 2d 815, 104 S. Ct. 2862 (1984) ( “This Court, however, has rejected the notion that a use is a public use only if the property taken is put to use for the general public”).
[11] See also Clark, 198 U.S., at 367-368, 49 L. Ed. 1085, 25 S. Ct. 676; Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 531, 50 L. Ed. 581, 26 S. Ct. 301 (1906) ( “In the opinion of the legislature and the Supreme Court of Utah the public welfare of that State demands that aerial lines between the mines upon its mountain sides and railways in the valleys below should not be made impossible by the refusal of a private owner to sell the right to cross his land. The Constitution of the United States does not require us to say that they are wrong”); O’Neill v. Leamer, 239 U.S. 244, 253, 60 L. Ed. 249, 36 S. Ct. 54 (1915) ( “States may take account of their special exigencies, and when the extent of their arid or wet lands is such that a plan for irrigation or reclamation according to districts may fairly be regarded as one which promotes the public interest, there is nothing in the Federal Constitution which denies to them the right to formulate this policy or to exercise the power of eminent domain in carrying it into effect. With the local situation the state court is peculiarly familiar and its judgment is entitled to the highest respect”).
[12] Cf.
[13] It
is a misreading of Berman to suggest that the only public use upheld in
that case was the initial removal of blight. See Reply Brief for Petitioners 8.
The public use described in Berman extended beyond that to encompass the
purpose of developing that area to create conditions that would prevent
a reversion to blight in the future. See 348
[14] Any
number of cases illustrate that the achievement of a public good often
coincides with the immediate benefiting of private parties. See, e.g., National
Railroad Passenger Corporation v. Boston & Maine Corp., 503 U.S.
407, 422, 118 L. Ed. 2d 52, 112 S. Ct. 1394 (1992) (public purpose of “facilitating
Amtrak’s rail service” served by taking rail track from one private company and
transferring it to another private company); Brown v. Legal
Foundation of Wash., 538 U.S. 216, 155 L. Ed. 2d 376, 123 S. Ct. 1406
(2003) (provision of legal services to the poor is a valid public purpose). It
is worth noting that in Hawaii Housing Authority v. Midkiff, 467
[15] Notably,
as in the instant case, the private developers in Berman were required
by contract to use the property to carry out the redevelopment plan. See 348
[16] Nor
do our cases support Justice O’Connor’s novel theory that the government may
only take property and transfer it to private parties when the initial taking
eliminates some “harmful property use.” Post, at ____, 162 L. Ed. 2d, at
465 (dissenting opinion). There was nothing “harmful” about the nonblighted
department store at issue in Berman, 348 U.S. 26, 99 L. Ed. 27, 75 S.
Ct. 98; see also n 13, supra; nothing “harmful” about the lands at issue
in the mining and agriculture cases, see, e.g., Strickley, 200
U.S. 527, 50 L. Ed. 581, 26 S. Ct. 301; see also nn 9, 11, supra; and
certainly nothing “harmful” about the trade secrets owned by the pesticide
manufacturers in Monsanto, 467 U.S. 986, 81 L. Ed. 2d 815, 104 S. Ct.
2862. In each case, the public purpose we upheld depended on a private party’s future
use of the concededly nonharmful property that was taken. By focusing on a
property’s future use, as opposed to its past use, our cases are faithful to
the text of the Takings Clause. See
[17] Courts
have viewed such aberrations with a skeptical eye. See, e.g., 99
Cents Only Stores v. Lancaster Redevelopment Agency, 237 F. Supp. 2d
1123 (CD Cal. 2001); cf.
[18] Cf.
Panhandle Oil Co. v.
[19] A
parade of horribles is especially unpersuasive in this context, since the
Takings Clause largely “operates as a conditional limitation, permitting the
government to do what it wants so long as it pays the charge.” Eastern
Enterprises v. Apfel, 524
[20] See also Boston & Maine Corp., 503 U.S., at 422-423, 118 L. Ed. 2d 52, 112 S. Ct. 1394 ( “[W]e need not make a specific factual determination whether the condemnation will accomplish its objectives”); Monsanto, 467 U.S., at 1015, n. 18, 81 L. Ed. 2d 815, 104 S. Ct. 2862 ( “Monsanto argues that EPA and, by implication, Congress, misapprehended the true ‘barriers to entry’ in the pesticide industry and that the challenged provisions of the law create, rather than reduce, barriers to entry. . . . Such economic arguments are better directed to Congress. The proper inquiry before this Court is not whether the provisions in fact will accomplish their stated objectives. Our review is limited to determining that the purpose is legitimate and that Congress rationally could have believed that the provisions would promote that objective”).
[21] The amici raise questions about the fairness of the measure of just compensation. See, e.g., Brief for American Planning Association et al. as Amici Curiae 26-30. While important, these questions are not before us in this litigation.
[22] See,
e.g.,
[23] Under
[24] For
example, some argue that the need for eminent domain has been greatly
exaggerated because private developers can use numerous techniques, including
secret negotiations or precommitment strategies, to overcome holdout problems
and assemble lands for genuinely profitable projects. See Brief for Jane Jacobs
as Amicus Curiae 13-15; see also Brief for John Norquist as Amicus
Curiae. Others argue to the contrary, urging that the need for eminent
domain is especially great with regard to older, small cities like
[25] Some
state constitutions at the time of the founding lacked just compensation
clauses and took property even without providing compensation. See Lucas
v. South Carolina Coastal Council, 505
[26] Compare ante, at ____, 162 L. Ed. 2d, at 450-451, and n 8 (majority opinion) (noting that some state courts upheld the validity of applying the Mill Acts to private purposes and arguing that the “‘use by the public’ test” “eroded over time”), with, e.g., Ryerson v. Brown, 35 Mich. 333, 338-339 (1877) (holding it “essential” to the constitutionality of a Mill Act “that the statute should require the use to be public in fact; in other words, that it should contain provisions entitling the public to accommodations”); Gaylord v. Sanitary Dist. of Chicago, 204 Ill. 576, 581-584, 68 N. E. 522, 524 (1903) (same); Tyler v. Beacher, 44 Vt. 648, 652-656 (1871) (same); Sadler v. Langham, 34 Ala. 311, 332-334 (1859) (striking down taking for purely private road and grist mill); Varner v. Martin, 21 W. Va. 534, 546-548, 556-557, 566-567 (1883) (grist mill and private road had to be open to public for them to constitute public use); Harding v. Goodlett, 3 Yerg. 41, 53 (1832); Jacobs v. Clearview Water Supply Co., 220 Pa. 388, 393-395, 69 A. 870, 872 (1908) (endorsing actual public use standard); Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429, 449-451, 107 N. W. 405, 413 (1906) (same); Chesapeake Stone Co. v. Moreland, 126 Ky. 656, 663-667, 104 S. W. 762, 765, 31 Ky. L. Rptr. 1075 (Ct. App. 1907) (same); Note, Public Use in Eminent Domain, 21 N. Y. U. L. Q. Rev. 285, 286, and n 11 (1946) (calling the actual public use standard the “majority view” and citing other cases).
[27] Some States also promoted the alienability of property by
abolishing the feudal “quit rent” system, i.e., long-term leases under
which the proprietor reserved to himself the right to perpetual payment of
rents from his tenant. See Vance, The Quest for Tenure in the