More Historical Evidence Showing that the Public Use Clause of the Fifth Amendment Does Not Allow Takings that Transfer Property to Private Parties

Harvard law Prof. Maureen Brady uncovers relevant evidence from late-nineteenth century state constitutional conventions.

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The Supreme Court's controversial 5-4 ruling in Kelo v. City of New London (2005), held that private "economic development" is enough to satisfy the Fifth Amendment requirement that the government can only condemn property for a "public use." In so doing, it rekindled a longstanding debate over whether takings that transfer property to private parties violate the public use requirement. Harvard law Professor Maureen "Molly" Brady - one of the nation's leading property and takings scholars - has uncovered additional new evidence on this topic. And it counts against the decision reached in Kelo.

In an insightful post at the Brennan Center State Court Report, and an article for the recent Yale Journal on Regulation symposium on the 20th anniversary of Kelo (which I co-edited), Brady assesses debates over public use in late-nineteenth century state constitutional conventions, mostly in western states. She finds that several western states included specific provisions in their new state constitutions authorizing the use of eminent domain for some private purposes, such as drainage and mining. But, importantly, they did so explicitly, specifically outlining these categories as exceptions to the general requirement that takings must be for a "public use."

While Brady does not quite fully draw the connection, the fact that these private-use takings had to be explicitly authorized indicates that most delegates to these state constitutional conventions did not believe that a standard authorization of takings for "public use" was sufficient to allow condemnations for transfer to private parties, so long as the latter might benefit the public in some way (the  interpretation eventually adopted by the federal Supreme Court in its terribly reasoned decision in Berman v. Parker (1954) and reiterated in Kelo). Rather, they assumed that "public use" only allowed condemnation for publicly owned projects, with the possible exception of private owners who have a legal duty to serve the entire public (such as public utilities).

This evidence is relevant to the interpretation of the federal Public Use Clause because many originalists argue that the relevant period for understanding the original meaning of the Bill of Rights as applied to state and local governments, is that around 1868, when the Fourteenth Amendment was enacted, thereby "incorporating" the Bill of Rights against the states. The state constitutional conventions Brady analyzes mostly occurred within a few years of 1868, and therefore illuminate understandings of the meaning of "public use" during this period.

One might wonder why state constitutional framers enacted provisions allowing for takings that were banned by the federal Fifth Amendment. One likely reason is that, during this period, the Supreme Court had not yet ruled that the Fifth Amendment (or the rest of the Bill of Rights) had indeed been incorporated against the states. It did not do so until well into the twentieth century, a history discussed in Chapter 2 of my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain,

In The Grasping Hand, I also cover a wide range of other evidence of the meaning of public use in 1868, including state court decisions, legal treatises, and more. This evidence, too, largely supports the narrow definition of "public use" over the broad one adopted in Berman and Kelo. The same is true of the admittedly more limited evidence on the understanding of "public use" in 1791, when the Fifth Amendment and the rest of the Bill of Rights were initially ratified. This evidence, too, is covered in my book.

Brady argues that the nineteenth century state conventions also highlight the importance of the "necessity" requirement as a constraint on eminent. Necessity - a doctrine adopted in many states' eminent domain jurisprudence - requires proof that condemnation is needed in order to achieve the public use supposedly justifying the taking. While federal courts would do well to give greater consideration to necessity, it is not a substitute for restoring the correct meaning of "public use." A condemnation that is "necessary" for a private use is still unconstitutional.

In the aftermath of Kelo, many states enacted reforms constraining eminent domain abuse. But abusive takings still continue in many parts of the country, and state action is not a sufficient substitute for systematic nationwide enforcement of the Fifth Amendment's public use requirement.

I hope the Supreme Court eventually reconsiders its badly flawed "public use" jurisprudence, and reverses Kelo and Berman. Molly Brady's excellent work provides additional reasons for moving in this direction.