At Volokh Conspiracy, Ilya Somin: More Historical Evidence Showing that the Public Use Clause of the Fifth Amendment Does Not Allow Takings that Transfer Property to Private Parties. From the introduction:
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.
Posted at 6:27 AM