Public Use

Kelo, Originalism, and Public Use

A response to Jonathan Adler's attempt at an originalist defense of Kelo v. City of New London.


The Supreme Court's 2005 decision in Kelo v. City of New Londonwhich upheld the use of eminent domain to take homes for transfer to a private developer in order to promote "economic development," rekindled a two-hundred year long debate over the Takings Clause of the Fifth Amendment. The Amendment mandates that private property must not be "taken for public use, without just compensation." Nearly all participants in the longstanding debate over the meaning of this phrase have assumed that takings for purposes other than public uses are simply forbidden—even if compensation is paid.

They disagreed over whether the correct interpretation of "public use" is what I have called the "broad view"—under which virtually any potential public benefit qualifies—or the narrow view, under which a public use only exists if the condemned property is transferred to government ownership (as in the case of public infrastructure such as roads) or to a private owner that is legally obligated to serve the entire public.

There is plausible originalist evidence for both sides in this debate. In my book, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, I describe how the evidence for the narrow view is, overall, much stronger than that backing the broad alternative (see also my brief summary here).

But even if I'm wrong about that, this is still a debate in which both sides admit that "public use" imposes at least some constraints on the range of purposes for which government can condemn private property. Advocates of the broad view admit there can be extreme cases where a taking runs afoul of public use limits. For example, the Kelo majority opinion concedes that "pretextual takings"—condemnations where the official rationale is obviously a smokescreen for a scheme to benefit a private party—are still unconstitutional (though it is extremely unclear about how courts should determine what qualifies as a pretextual condemnation).

In a thoughtful recent post on this issue, co-blogger Jonathan Adler embraces a much more radical defense of the result in Kelo. Rather than defending the broad view of public use, he argues that the term "public use" simply doesn't constrain takings at all:

The first thing to note is that in the Takings Clause itself, "public use" is not written as a limitation. The text does not read "nor shall private property be taken other than for public use." Rather it identifies a type of taking—those "for public use"—that require compensation. "Public use" is used to differentiate a subset of takings. It is not written as a requirement or limitation.

Read in the context of the full amendment, this makes sense, for there are all sorts of takings or property for which compensation is not required, including taxes, fines, and seizures. Those takings require due process, but do not require "just compensation." It is when property is taken for a public purposes (as opposed to as a punishment or as an exaction) that compensation is required. To restate: The text requires Due Process for all takings of property, and then requires compensation for the subset of takings that are "for public use." Like it or not (and I most definitely do not) this is the most straight-forward reading of the constitutional text, and there is little historical or other evidence to the contrary.

This is not a completely new theory. It has been defended by a few modern legal scholars, most notably in a 1993 article by Jed Rubenfeld. But, despite Jonathan's assertion to the contrary, there is in fact overwhelming evidence against it. The key point is simply this: No significant jurist or legal commentator embraced it during the Founding era, or for many decades thereafter.  Significantly, nineteenth-century advocates of broad eminent domain power (and court decisions endorsing it) did not advance this theory. They instead argued for the broad view of public use.

If the Rubenfeldian approach were truly in accordance with original meaning, one would expect people at the time to note that and to deploy it as an argument for wide-ranging use of eminent domain. While federal government takings were rare during this period, most state constitutions had public use clauses with identical or similar wording to the federal one. Takings by state and local governments generated extensive public use litigation. Yet the Rubenfeld theory is conspicuous by its absence in this period.

The closest thing we have to a judicial endorsement of the Rubenfeld theory is a belated one Justice John Paul Stevens, the author of the Kelo majority opinion. After he retired from the Court in 2010, Stevens came to realize that his defense of the broad view of public use in Kelo was in part based on what he called an "embarrassing to acknowledge" error in interpretation of precedent. In retirement, Stevens instead shifted to defending Kelo based on a theory similar to Rubenfeld's. But one retired justice's view is not much of a legal precedent, and certainly doesn't tell us anything of use about the original meaning.

In Chapter 2 of The Grasping Hand, I included a critique of Rubenfeld's theory. Here is an excerpt:

As a purely textual interpretation of the Fifth Amendment, Rubenfeld's reading is plausible. However, it is at least equally plausible to interpret the text as implicitly assuming that takings for private uses are forbidden, and therefore there is no need to provide compensation for them. That assumption is compatible with the natural law understanding of property rights common at the time of the Founding, which held
that government inherently lacked power to engage in naked transfers of
property "from A to B."

From the standpoint of originalism, as opposed to pure textualism, Rubenfeld's argument is weaker still. Without exception, eighteenth- and early nineteenth- century court decisions and statements by the Founders themselves assumed that takings required compensation regardless of whether the property was transferred to government ownership or not….

Allowing government unrestrained authority to transfer property from one private individual to another without even paying compensation also conflicted with the founding generation's generally strong emphasis on property rights. It seems strange, to say the least, that the Founders would have required compensation for takings needed for even the most essential public uses but no protection at all against takings for even the most blatant private ones.

As Jonathan notes, many originalists argue that the original meaning of the Bill of Rights that binds us today is not that of 1791 (when the first ten amendments were originally enacted), but that of 1868, when the Fourteenth Amendment first made the Bill of Rights applicable to state and local governments (which conduct the vast majority of takings). In this period, we have far more evidence about the original meaning of "public use" than the 1790s. And a large majority of it supports the narrow view. That was the position endorsed by a large majority of state supreme courts during that era, and by most prominent legal treatises. It also best fits with the purposes for which the Framers of the Fourteenth Amendment sought to "incorporate" the Takings Clause against the states. The state-court interpretations of state public use limitations are relevant to the federal one, because almost all involved state constitutional provisions based on the Fifth Amendment, and with similar or identical wording. The reasoning behind them almost always rested on the general nature of "public use," rather than on considerations specific to a particular state. I discuss these issues in far greater detail in my book.

During the period surrounding 1868, there was still a considerable minority of courts and prominent legal commentators who endorsed the broad definition of "public use." But the Rubenfeld theory was, once again, conspicuous by its absence.

A number of other considerations also count against the Rubenfeld theory. For example, if "public use" does not constrain the reasons why property may be taken, but merely indicates which takings require compensation, then that leads us to the absurd conclusion that even the most egregious takings for private interests do not require compensation, while takings for even the most important public infrastructure do.

In his post, Jonathan suggests that the phrase "public use" may differentiate one category of taking that requires compensation from others, such as taxes, fines, and seizures, that only require "due process." But then, as today, taxation and the imposition of fines for lawbreaking were not regarded as takings of property at all. By contrast, seizures unrelated to taxation, fines, or some types of exercise of the "police power,"  generally were regarded as takings of private property, and thus did require compensation. Indeed, one of the purposes of the Takings Clause was to prevent a recurrence of uncompensated seizures of property that had occurred under British colonial rule and during the Revolutionary War.

Jonathan doesn't totally reject the possibility that the 1868 understanding of "public use" imposes constraints on the eminent domain power. So perhaps there is less disagreement between us than might initially seem to be the case.

There are plausible originalist justifications for Kelo, though I think the originalist evidence on the other side is ultimately much stronger. But the Rubenfeld theory is a weak one, and one radically at odds with the available evidence, and with many decades of precedent.


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  1. The referee awards Somin 2 points for a takedown.

  2. It has been defended by a few modern legal scholars, most notably in a 1993 article by Jed Rubenfeld.

    Um… THAT Jed Rubenfeld?

    1. No, the other one.

  3. Utility endorses Kelo. The math has to be right.

  4. I’d like to see takings from 1776 through 1868 (federal and state). It’d be interesting to see how wide or narrow it was used.

  5. What’s your opinion of the government condemning a property as “blight” to lower the property value (and compensation for the taking) for third party investors?

    I think the courts need to make clear that practice is evil. I saw it happen in Norwood, OH (right outside of Cincinnati) when a bunch of working class families had their homes classified as blight so the city didn’t have to pay full market value as they seized the property. It was horrible for this families and the courts let it happen.

  6. The ilya guy seems to have exhaustively considered the history and the alternative arguments. Unless the adler guy replies with an equally exhaustive rejoinder, ilya seems to have the stronger argument.

    But lets not forget the fruits of these land grabs. I’m thoroughly enjoying my wisconsin made foxconn flat screen. It is so thin, it is entirely invisible to the naked eye. If wisconsin hadn’t scooped up all that land, I might instead be looking at some flat screen that I could see. This really helped old people like me (over 30) who still look at large flat screens, because the z generation hardly want them.

  7. I’d be interested in Adler or Rubenfeld’s view on whether or not the Due Process clause allows innocent people to be put to death or incarcerated for economic development purposes.

  8. Maybe you’re both right.

    If “for public use” was to be read as a constraint, what would happen if the takings clause were removed? Freshly unconstrained, would private takings become ok?

    That outcome feels odd. It may be better to read the due process clause’s “nor be deprived of … property” as the baseline protection against private takings. And then say, there simply is no process available for private takings.

    There must be other categories of “deprivation” which are effectively barred not by the takings clause but by the lack of any “due process” to effect it. Like… forced labor?

    1. Perhaps the trinoda necessitas — the bridge-bote (repairing bridges and roads), burgh-bote (building and maintaining fortifications), and fyrd-bote (serving in the militia) — referenced in Butler v. Perry, 240 U.S. 328 (1916)? [I realize Prof. Somin does not agree with the outcome of Butler v. Perry, which in its syllabus states “The Fourteenth Amendment was intended to recognize and protect fundamental objects long recognized under the common law system. // Ancient usage and unanimity of judicial opinion justify the conclusion that, unless restrained by constitutional limitations, a state has inherent power to require every able-bodied man within its jurisdiction to labor for a reasonable period on public roads near his residence without direct compensation.”]

      So, yes, the state government can force labor and that does seem to me to be an uncompensated taking.

    2. To follow up on my own thought… the reason you both are right in this reading is that “for public use” would still act as a constraint in this way:

      The takings clause implies that there must be a due process for taking property “for public use,” since otherwise the clause would be inoperative. But it doesn’t imply the existence of a process for private takings, for example. By itself, that doesn’t mean there is no such process, but it does mean that the taking clause’s implied process is constrained to public use takings.

  9. I think one thing that got kind of lost here, but seems important, is that the Takings Clause only applied to the federal government who already had only limited powers based on Article I. It is entirely conceivable, and to me quite likely, that when written the idea of a private use taking wasn’t contemplated at a federal level as any such taking would almost certainly have run afoul of Congress’s Article 1 powers (particularly as originally understood). So I think the dearth of such discussion is because it wasn’t seen as a plausible scenario.

    That brings us to the question of what “version” of the BoR applies to the states whose powers far exceed what Congress can do. Is it the original BoR or the 1868 BoR. If it is the latter then we still must acknowledge that those readings wouldn’t apply to the federal government. If it is the former then we have to acknowledge that sometimes incorporating a right that was only written for a limited power government doesn’t always translate well to a more extensive state government. I’ve always held the former view that the 14th amendment incorporates and doesn’t amend the BoR, so that the BoR is interpreted as originally meant and that is what applies to the states as well even if the Reconstruction Era interpreted them differently.

    There is also the possibility that the 5th A, and 14A through which it applies to the states, is not the only source of rights and while those amendments don’t prohibit such takings, a different clause (I think the 9th A.) may very do so.

  10. While I agree that “the natural law understanding of property rights common at the time of the Founding” held that the federal government “inherently lacked power to engage in naked transfers of property ‘from A to B’ [both singular],” the understanding (at least before 1802) did not necessarily hold that all of government lacked power to engage in naked transfers of property from A and/or As [singular and/or plural] to Bs [plural]: prior to 1802, state governments routinely transferred property from one person or groups of people to groups of people and, if we believe that “the Fourteenth Amendment was intended to recognize and protect fundamental objects long recognized under the common law system,” such practice remains constitutional today.

    I do not like such transfers… I merely acknowledge that there is no constitutional prohibition against them.

  11. This argument is on a par with, “It says warrants shall not issue without probable cause, but doesn’t actually say you have to have a warrant to search.”

    Once you start approaching the Constitution with an eye for loopholes, instead of an eye for how it can be honestly implemented, well, it’s just a parchment barrier, isn’t it?

    1. If I recall the warrant argument, however, it is that getting a warrant conferred immunity. So if you searched without one and it was determined to be unreasonable you were subject to lawsuits (tresspass, conversion, etc.). I’m not convinced that is correct, but there is some founding evidence for it and they are still giving the warrant clause a purpose that and a law that while I don’t like is not incoherent or absurd.

      1. Right, and similarly, if the government takes property without compensation, it could be treated as theft, or the government could be sued… In its own courts? Where it can only be prosecuted if it feels like being prosecuted, sued if it feels like being sued, and holds the upper hand because the judge works for the government?

        The basic problem here is that you can’t, realistically, say that not getting the warrant, or not taking for a public purpose, opens the government up to legal remedies. Maybe for a little while at the beginning this was a live threat, it isn’t really today.

        You have to say that the government simply can’t do it. Nothing less than that actually gets any traction.

        1. But I mean, just like with takings, right before the part you quoted, the amendment does restrict all searches:

          “The right of the people to be secure … against unreasonable searches and seizures, shall not be violated”

          So… what is the loophole exactly?

          (Also, in fact, you don’t have to have a warrant to search. Lots of warrantless searches are allowed. Warrants just help get some particularly invasive searches across the reasonableness threshold.)

  12. Wow what a concept. Call yourself an “originalist”, say you are for the original meaning of the Constitution as written, call out others who believe in a “Living Constitution”, then conveniently redefine the definition of “original” to a time period about 90 years after the founding of the US.

    1. Originalism isn’t about “the founding of the US;” it’s about the enactment of a provision or law. That’s why when we talk about a particular constitutional provision in the original constitution we talk about what it meant in 1788, not 1776. And when we talk about the 14th amendment, we talk about what it meant in 1868, not 1788 or 1776.

  13. Well… no. It does seem like Ilya is interpreting 1788’s fifth amendment through an 1868 lens, at least in so far as it applies to the states.

    It’s true that the 14th amendment repeats part of the 5th amendment’s language, so that’s a real toughie for originalists I’m sure. Should a reference by explicit imitation carry the original’s meaning or a new meaning based on the new era and context? If the former, then you risk interpreting the new enactment differently than was intended at the time. If the latter, then you have the same text in the same document with different meanings in different places.

    But that’s not what’s happening here anyway. The 1868 reference to the 1778 takings clause is implicit. It’s very difficult to stomach the idea that a single clause in a document should have two different meanings depending on the use case.

    This whole mess is (part of) why originalism is stupid.

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