Kelo v. New London

[Emsworth]

Among recent Supreme Court cases, Kelo v. New London is usually cited as one of the worst. I think that all of us on the forum generally accept that using land for private development is not public use, but private use. It remains only to establish if the Fourteenth Amendment precludes the utilization of the eminent domain power by the states when the property is being taken for private, rather than public use.

If we accept that the the privileges or immunities clause of the Fourteenth Amendment incorporates the first eight amendments, then the Fifth Amendment, naturally, is made applicable to the states. The relevant part of the Fifth Amendment is, "[N]or shall private property be taken for public use, without just compensation." However, when we apply this amendment to the states, a literal reading of the amendment would require just compensation only when property is being taken for public use, but would not require just compensation when the property is being taken for private use. This is, of course, an absurdity and an illogical result; therefore, as the common-law rules of statutory construction require, the literal interpretation must be varied so that the absurdity can be avoided. There are two ways in which a court can do so: (1) rule that states may seize property for both public and private use, as long as compensation is provided, or (2) rule that states may seize property for public use as long as compensation is provided, but may not seize property for private use at all. I think that some on this forum have argued for the first option, and others for the second.

I would argue that the second of the aforementioned two options is preferable, from a legal perspective. The clear implication of the Fifth Amendment is that the government may not take property for private use. Because only "public use" is mentioned, the conclusion should be (as far as Congress is concerned) that taking property for private use is impermissible. To quote Justice Thomas, "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.' ... 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." I completely agree: why mention only "public use," if taking for both public and private uses is permitted?

This limitation clearly applies to Congress, not just through a lack of an enumerated power, but also due to the text of the Fifth Amendment. Accordingly, it seems to me that the limitation should apply to the states as well, and that interpretation (2) listed above is better than interpretation (1).

[Schmitz in 1972]

Dang it! Why can't you be one of the 9 justices

If I was a senator and you a supreme court nominee I would vote for you, and considering taht I wouldn't vote for Roberts that is saying something.

[A18]

Only public use is mentioned because the Bill of Rights originally applied only to the fed. The Congress had power to seize private property only through the necessary and proper clause, and for carrying into execution one of its enumerated powers. Because of the nature of these powers, Congress could take private property only for public use.

State powers are more general. It is not logical to apply the enumerated powers test against the states, so that part of the amendment should merely be omitted. "Nor shall private property be taken ... without just compensation."

[Emsworth]

The Congress had power to seize private property only through the necessary and proper clause, and for carrying into execution one of its enumerated powers. Because of the nature of these powers, Congress could take private property only for public use.

I have no disagreement with this analysis. However, at the same time, I would argue that taking for private use is prohibited not only by the lack of enumerated powers, but also by the reference to "public use."

The Supreme Court has long accepted that the mention of "public use" means that taking for private use is prohibited, even at the state level. In Cole v. La Grange (1885), Justice Horace Gray wrote that the fact that only "public use" is mentioned "clearly presupposes that private property cannot be taken for private use." The view expressed in this case has never, to my knowledge, been rejected. It would appear to me that this is not an unreasonable interpretation, and that, being supported precedent, carries additional weight.

On the whole, I feel that the public use clause is not merely a restatement of a lack of enumerated powers, as you would suggest. Instead, it constitutes an express and positive prohibition against taking property for private use. As Justice Clarence Thomas said, "The Public Use Clause, like the Just Compensation Clause, is therefore an express limit on the government’s power of eminent domain."

I would suggest that the interpretation which gives the Public Use Clause positive effect is more reasonable than the interpretation which ignores it entirely. Furthermore, the former interpretation is supported by the weight of precedent.

[A18]

Anyone fluent in the English language can tell that the amendment does not so much as restrict the taking of private property for anything but public use, much less prohibit it.

[Emsworth]

Anyone fluent in the English language can tell that the amendment does not so much as restrict the taking of private property for anything but public use, much less prohibit it.

But the Constitution is not to be interpreted according to the normal rules of the English language alone, but according to the rules of statutory construction prescribed by the common-law. As I argued in my post above, the application of these rules of construction lead one to the conclusion that the prohibition is implicit, not explicit.

[A18]

It is implicit with regard to the federal government.

But what's relevant here is the Fourteenth Amendment's Privileges or Immunities Clause. You have to leave out the federal elements.

[Emsworth]

But what's relevant here is the Fourteenth Amendment's Privileges or Immunities Clause. You have to leave out the federal elements.

I would argue that the only parts of the first eight amendments which are federal elements are "Congress" in the First Amendment, and "any Court of the United States" in the Seventh Amendment. These must be modified or adjusted appropriately when applied to the states.

But while the terms "Congress" and "Court of the United States" are federal elements, there is nothing inherently federal about "public use." Much of the Bill of Rights was redundant with regard to the federal government; that does not stop it from applying to the states. The free exercise clause was certainly redundant, as the federal government had no power to establish religions. But this does not stop either from being properly applicable to the states. The same line of reasoning should apply to the public use clause.

I would argue that public use clause was not originally understood as a mere superfluity, the consequence of an implication with regard to limited federal powers, but rather an actual prohibition. It affirmed the right of the people to be free from having their property taken for private use. This interpretation seems to find quite some support with precedent. In Beckman v. Saratoga R.R., Chancellor Wadsworth of New York suggested, "The only restriction upon this power, in cases where the public or the inhabitants of any particular section of the state have an interest in the contemplated improvement as citizens merely, is that the property shall not be taken for the public use without just compensation to the owner, and in the mode prescribed by law. The right of eminent domain does not however imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation, where the public interest will be in no way promoted by such transfer." In Wellington v. Petitioners (1834), Chief Justice Shaw of Massachusetts spoke of "that sovereign power over all property, inherent in all governments, sometimes called the right of eminent domain, the power of taking property for public use." Justice Gray of the Supreme Court confirmed this view, saying in Cole v. La Grange that the public use clause "clearly presupposes that private property cannot be taken for private use."

The notion that the public use clause guarantees an actual right, I think, is also supported by various state bills of rights. The constitutions or bills of rights of Virginia, New Hampshire, Pennsylvania, Massachusetts, and others (all as enacted before the federal Constitution) recognize this public use rule.

All of this leads me to believe that the public use clause is not a superfluity that results from the nature of federal powers, but the guarantee of an actual right that binds the states (through the 14th Amendment).