“Public Use” Means Public Use

“Nor shall private property be taken for public use, without just compensation.”  U.S. Constitution, Amendment V

Justice Oliver Wendell Holmes coined many pithy aphorisms, including the frequently-cited cliché that “hard cases make bad law.”  Sometimes this may be true, but in reality “bad law” has many sources, often sloppy or unprincipled reasoning by the judge(s) in question.  It is particularly infuriating when easy cases make bad law, highlighting the potential for error (or, worse, dishonesty) in judicial decision-making.  When that happens, legal scholars are supposed to weigh in and point out where the errant judges have strayed from the doctrinal (and/or historical) path.  George Mason University law school professor Ilya Somin does just that in his fine book The Grasping Hand (2015), a thorough exploration of Kelo v. City of New London (2005) and the power of eminent domain generally.

In Kelo, following earlier decisions in Berman v. Parker (1954) and Hawaii Housing Authority v. Midkiff (1984), the U.S. Supreme Court held by a 5-4 vote that the words “public use” in the Takings Clause of the Fifth Amendment does not restrict the taking of private property to government use; it is sufficient that the condemnation have a “public purpose,” a loose concept that encompasses virtually any use deemed to have a potential public benefit.  Thus, state and local governments can—and do—wield the awesome power of eminent domain to compel the transfer of property from one private owner to another, in the name of “urban renewal,” “redevelopment,” and similar euphemisms for rent-seeking by powerful special interest groups. The current conception of “public use” would, proponents concede, permit the condemnation of a Motel 6 owned by A so the property could be used by B to build a Ritz-Carlton that generated more tax revenue.

A growing consensus has developed that Kelo was wrongly decided.  Indeed, the Kelo decision has come to be regarded as an archetypal example of bad law.  Somin analyzes Kelo from many different perspectives—historical, economic, philosophical, and political—but the most valuable aspect of The Grasping Hand is his inquiry into the original meaning of the term “public use.”  He persuasively argues that the U.S. Supreme Court flat-out misconstrued one of the most important provisions of the Constitution, leaving property owners at the mercy of state and local governments. In the process, the Court produced one of the most controversial decisions in modern times.

Although Kelo was politically unpopular—even reviled—Somin notes that “a substantial majority of constitutional law scholars continue to believe that Kelo was rightly decided.”  In The Grasping Hand, Somin aims to prove them wrong.  He does what no other scholar had previously done, at least in a book-length treatment—pore over all the state court rulings interpreting the term “public use” circa 1868 when the provisions of the Fifth Amendment became applicable to the states pursuant to the adoption of the 14th Amendment.   The preponderance of those rulings, both at the time of the Founding and in 1868, supports what Somin refers to as the “narrow view” of public use.  He concludes that most courts permitted takings of property only for transfer to the government or to a private entity that “has a legal obligation to allow the general public to use the land in question, as in the case of a public utility” or common carrier.  Thus, the taking of private homes, as in Kelo, to assemble a parcel for commercial or industrial purposes, would have been impermissible. For “originalists” like Somin, the historical prevalence of the “narrow view” has important implications for judicial interpretation: It is powerful evidence of the original meaning of the Fifth and Fourteenth Amendments, which judges should honor in interpreting the Takings Clause.  Courts have taken a much more deferential approach to “public use” since the dawn of the 20th century, but it wasn’t always so.

Property rights were sacred to the Founding Fathers. Protecting property rights was considered to be an essential function of government and an indispensable aspect of liberty. Early jurists viewed eminent domain as a “despotic power” (Vanhorne’s Lessee v. Dorrance (1795)) and expressed their belief that a compelled transfer of property from one private party to another “is against all reason and justice.”  Calder v. Bull (1789). Challenging prevailing assumptions, Somin argues that the existence of early laws permitting condemnation of property for privately-owned mills and roads is consistent with a “narrow view” because those facilities were generally open to the public—similar to modern-day public utilities.  Litigation over “public use” increased in the 19th century; even prior to adoption of the 14th Amendment, almost every state had a “public use” clause in its state constitution.

Somin’s main contribution to the scholarly literature lies in his detailed review of state court decisions during this era, leading him to conclude (contra Lawrence Berger) that by the late 1870’s “a substantial majority [of state supreme courts] endorsed the narrow view of public use,” as did the few U.S. Supreme Court decisions and leading legal treatises.  The tide began to turn in the early 20th century, however, with the advent of the Progressive Era, “when state courts gradually began to transition from the narrow view of public use to the broad one” currently in vogue. A major factor in this transformation was the use of eminent domain to condemn “blighted” urban areas for transfer to private developers, leading to the unfortunate landmark case Berman v. Parker (authored by Justice William O. Douglas).  Kelo extended the unanimous holding of Berman, approving the taking of private property, even in the absence of urban blight, for the sole purpose of economic development.  After Kelo, almost any conceivable public “benefit” will suffice as a “public use.”  The once-feared “despotic power” is now constitutionally untethered.

Much of the prior scholarship in the area of “public use,” and the Kelo decision itself, erroneously conflates the Supreme Court’s pre-incorporation condemnation precedents decided under the Due Process Clause of the 14th Amendment (which were often deferential to state governments) with cases applying the Takings Clause itself. Justice John Paul Stevens, the author of Kelo, subsequently acknowledged this error, which he termed “embarrassing.”  Somin eviscerates Kelo from every angle, but especially on the original meaning of “public use.”  Somin concludes that “there is a strong originalist case for a less deferential judicial approach to public issues,” and that the Kelo decision “was a major error that the Court should eventually overrule.” In Somin’s telling, Kelo was an easy case that made bad law.

If the goal of The Grasping Hand was to retrieve the original meaning of “public use” from scholarly and jurisprudential oblivion, Somin has succeeded.  Will the Court recognize its error and eventually overrule Kelo?  One can only hope.