Tag Archives: use

I Was Wrong

5th Amendment:

…nor shall private property be taken for public use without just compensation

Having done further research, I was wrong to ever give credence to Berman v. Parker 348 U.S. 26 (1954), which ruled:

The decision is important in two ways. First, it established that aesthetics are a legitimate public purpose, for which government may regulate and condemn land. This principle has encouraged increased governmental intervention to achieve aesthetic and environmental goals. Second, Berman made clear that the phrase “public use” in the Takings Clause did not mean that land condemned had to remain in government ownership or be used physically by the public. The Court seemed to hold that eminent domain might be used to advance any goal that government could pursue under any of its powers. Subsequent decisions have confirmed this broad understanding of Berman. Thus, under the Takings Clause, “public use” means only public purpose.

and to Midkiff v. Hawaii Housing Authority 467 U.S. 229 (1984) which ruled:

In Midkiff the Court virtually eliminated public use as a limit on when governments can condemn property. A public use is present, the Court held, even when the property is immediately turned over to private hands and is never used by the public. The requirement is satisfied whenever the taking is rationally related to some conceivable public purpose; it is the purpose of the taking, not the use of the property, that is important. This meant, the Court said, that the condemnation power is equal in breadth to the police power. The Court also held that courts should defer to legislative determinations of whether a purpose is a public one unless the determination is without reasonable foundation.

Both of these decisions set the precedent for Kelo. Follow me over the flip…

Kelo was univocal to Berman and Midkiff in its rulings, but that doesn’t mean Berman and Midkiff were rightfully decided

Let’s start off with something self-evident: the public use clause is a meaningful limit on government’s eminent domain power, or else it would be surplusage. As they said in Marbury v. Madison 1 Cranch (5 U.S.) 137 (1803):

It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.

and in Myers v. United States, 272 U. S. 52, 151 (1926):

Such a construction, although having the support of as great an expounder of the Constitution as Mr. Webster, is not in accord with the usual canon of interpretation of that instrument, which requires that real effect should be given to all the words it uses

So now you may be saying that the Takings Clause could distinguish the kinds of takings that require compensation with those that don’t. That would mean that takings for private use don’t require any compensation at all, and that would go against a founding principle of the United States: all takings require compensation.

So now let’s go over the definition of “use.” Some may say that it means “the act of employing” others may say it means “help.” Both are right as far as the dictionary definition goes. As far as the constitution goes, let’s look at the other places the word “use” is used (no pun intended)

Article 1, Section 10, Clause 2:

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

And Article 1, section 8, clause 12:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years

So let me ask you, don’t they mean that the Treasury will control and employ the revenue, and “employed to raise and support armies,” respectively? If yes, then how can one turn around and say they meant something entirely different in another part? Or for example, does use mean in the second one, “anything directed to achieving any military end”

Further, if the founders meant for public use to be as broad as some claim, why didn’t they say “general Welfare” or “public purpose?” They didn’t realize, you may say? Nope. Many founding era documents made the distinction. 6 of the original 13 states used the term “public use” while others says, “public exigencies” and “public necessity.”

Common law background further reinforces this. Methods have always existed for eliminating uses that negatively affected the public welfare: nuisance law. Nuisance law doesn’t require any compensation whatsoever.

To also say that “public use” means public purpose would say it’s redundant with the Necessary-and-proper clause:

Constitutional provision, U.S. Constitution, Art. I, Sec. 8, Cl. 18, empowering Congress to make all laws which shall be “necessary and proper” for carrying into execution the enumerated powers of Congress. The phrase is not limited to such measures as are absolutely necessary, but includes all appropriate means that are conducive to the end to be accomplished, and which in the judgment of Congress, will most advantageously [a]ffect it. 110 U.S. 421, 440. The clause is not a grant of power but a declaration that Congress possesses all the means necessary to carry out its specifically granted powers. 361 U.S. 234.

With the Necessary-and-proper clause, the Public Use Clause would be irrelevant if it meant “public purpose.” The explicit mention of one thing excludes all others. So even if it said, “nor shall private property be taken without just compensation,” they wouldn’t be able to take it for whatever reason. Necessary-and-proper clause would ensure they only do it to exercise an enumerated power.

So with the Necessary-and-proper clause alone, taking would be permissible only for a valid public purpose, and to say the Public Use Clause means the same thing would again, make it surplusage

Shifting to what inspired the Berman v. Parker and Midkiff v. Hawaii Housing Authority rulings. The “public purpose” interpretation of the Public Use Clause started in Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 161-162 (1896):

To irrigate, and thus to bring into possible cultivation, these large masses of otherwise worthless lands, would seem to be a public purpose, and a matter of public interest, not confined to the landowners, or even to any one section of the state. The fact that the use of the water is limited to the landowner is not, therefore, a fatal objection to this legislation. It is not essential that the entire community, or even any considerable portion thereof, should directly enjoy or participate in an improvement in order to constitute a public use.

That broad statement constitutes as dictum because the law in question made clear: (Ibid at 162)

All landowners in the district have the right to a proportionate share of the water, and no one landowner is favored above his fellow in his right to the use of the water

The SCOTUS cited no authority for the dictum.

Then to United States v. Gettysburg Electric R. Co., 160 U. S. 668 (1896), where the government was using eminent domain to build battlefield memorials at Gettysburg. That constitutes as a public use by anyone’s standards. But, the SCOTUS again engaged in dictum:

In these acts of congress, and in the joint resolution, the intended use of this land is plainly set forth. It is stated in the second volume of Judge Dillon’s work on Municipal Corporations (4th Ed. 600) that, when the legislature has declared the use or purpose to be a public one, its judgment will be respected by the courts, unless the use be palpably without reasonable foundation. Many authorities are cited in the note, and, indeed, the rule commends itself as a rational and proper one.

That was unnecessary and unjustifiable. To defer the definition of “public use” to the legislature is like deferring to the accused the decision of whether he/she’s guilty. Or to keep it in context with the Bill of Rights: Do we defer to the legislature’s interpretation of when a search or seizure is “reasonable?”

In Berman, they upheld the dicta:

Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well nigh conclusive. In such cases, the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, whether it be Congress legislating concerning the District of Columbia

And in both, they equated eminent domain power with the police power. More explicitly in Midkiff:

The “public use” requirement is thus coterminous with the scope of a sovereign’s police powers.

That was just pucky. As I mentioned above, traditional police and regulatory power to abate a nuisance required no compensation whatsoever. In Mugler v. Kansas, 123 U.S. 623 (1887):

As already stated, the present case must be governed by principles that do not involve the power of eminent domain, in the exercise of which property may not be taken for public use without compensation. A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the state that its use by any one, for certain forbidden purposes, is prejudicial to the public interests. Nor can legislation of that character come within the fourteenth amendment, in any case, unless it is apparent that its real object is not to protect the community, or to promote the general well-being, but, under the guise of police regulation, to deprive the owner of his liberty and property, without due process of law. The power which the states have of prohibiting such use by individuals of their property, as will be prejudicial to the health, the morals, or the safety of the public, is not, and, consistently with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent owner. It is true, when the defendants in these cases purchased or erected their breweries, the laws of the state did not forbid the manufacture of intoxicating liquors. But the state did not thereby give any assurance, or come under an obligation, that its legislation upon that subject would remain unchanged.

So there you have it. Kelo wasn’t unprecedented, but it was based off previous dicta. The Public Use Clause was meant to be more restrictive than “public purpose.” Our founders understood that the taking of an innocent person’s property should not be a regular means of exercising their enumerated powers. The question of whether the government can regulate property with its police power is different from whether the government can take property with eminent domain. State nuisance law, not eminent domain, would have been the appropriate way to deal with Berman and Midkiff