Public use has been a focus of debate for over two hundred years. During the Founding era and most of the nineteenth century, the dominant, though far from uncontested, view was that the power of eminent domain is subject to tight judicially enforceable limits. Beginning in the early twentieth century, the United States moved from a legal regime where the government was often tightly constrained in its ability to take property to one where takings like those in Kelo were far from unusual. Gradually, relatively narrow definitions of “public use” were displaced by the doctrine that government could condemn property for virtually any “public purpose,” defined broadly to include almost any potential benefit that might be created by a taking.
This chapter traces the history of public use and its implications for modern constitutional interpretation. It starts with attitudes toward public use issues at the time of the Founding, and continues on through the nineteenth century. During those periods, relatively narrow interpretations of “public use” predominated, although opinion was far from unanimous. The mid- to late nineteenth-century view of public use is particularly important, because that was the period when the Public Use Clause of the Fifth Amendment first became applicable to the states, as a result of the adoption of the Fourteenth Amendment in 1868, which “incorporated” the Bill of Rights against state governments. While a number of scholars have surveyed nineteenth-century understandings of public use,1 surprisingly there has not yet been a study that covers state court decisions in all the states that addressed the issue in the time frame surrounding 1868.2 Neither has there been one that considers the implications of the 1868 understanding of public use for constitutional interpretation. This chapter helps remedy these gaps in our knowledge.
The evidence for both the Founding era and the period around 1868 is far from unequivocal. But in both cases, the more common view held that there were strict constitutional limits on takings that transfer property to private parties. The most widespread approach to public use was what I refer to as the “narrow view.” That approach limits the use of eminent domain to takings for transfer to the government or to a private entity, which has a legal obligation to allow the general public to use the land in question, as in the case of a public utility.
The historical prevalence of the narrow view has important implications for judicial interpretation of public use, at least if that interpretation should be based on original meaning. While originalism is far from the only theory of constitutional interpretation, it does command widespread support. Even scholars and jurists who do not fully embrace it often recognize that original meaning is at least one factor that courts should consider in interpreting the Constitution, even if not the only one.
After considering nineteenth-century interpretations of public use, we will see how federal and state courts began to take a much more deferential approach to takings in the twentieth century, eventually creating a public use doctrine where property could be condemned for almost any reason. Both the federal Supreme Court and most state courts endorsed what I call the broad view of public use, under which eminent domain could be used for virtually any project that might create some sort of benefit to the public. By the time the Kelo case arose in the early 2000s, most experts believed that there was little chance that the Fifth Amendment’s Public Use Clause would ever again be a meaningful constraint on takings.
Public Use in the Founding Era
The Founders and Property Rights
If there is one issue on which most of the American Founders agreed, it was the importance of protecting private property rights. John Adams emphasized that “Property must be secured or liberty cannot exist.”3 At the Constitutional Convention of 1787, Alexander Hamilton claimed that “one great obj[ect] of Gov[ernment] is the personal protection and security of property.”4 In his famous 1792 essay on “Property,” James Madison, the “father of the Constitution” who also went on to author the Takings Clause of the Fifth Amendment,5 wrote that “Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.”6 In Federalist 10, he famously wrote that “the first object of government” is the “protection of different and unequal faculties of acquiring prop-erty.”7 In addition to believing that property rights had important instrumental value in promoting prosperity and republican government, most members of the founding generation also believed that they were natural rights valuable for their own sake.8
Despite this emphasis on the importance of property rights, there was surprisingly little early discussion of the meaning of the Public Use Clause—or even of the Takings Clause generally—at the time it was enacted and for years thereafter.9 Indeed, the clause was inserted into the Fifth Amendment primarily because of James Madison’s personal initiative at the time the Bill of Rights was being drafted rather than because there was any great public demand for it.10
This seeming omission becomes understandable once we recall that the Bill of Rights originally applied only to the federal government. During the Founding era, and for many years thereafter, the dominant view was that the federal government did not have the power to condemn property by using eminent domain in the states.11 Not until 1875 did the Supreme Court rule that Congress had the power to authorize such takings.12 Although the federal government still had the authority to take property in the District of Columbia and in federally owned territories, there was relatively little private property in these areas at the time, particularly since federally owned western territories were at the time sparsely settled, and the capital city intended to be established in the District of Columbia had not yet been built. For that reason, nearly all early public use cases arose under the public use provisions of state constitutions, not the federal Fifth Amendment. We therefore have little direct evidence bearing on the question of whether the framers and ratifiers of the Bill of Rights endorsed a narrow or broad interpretation of “public use.” But their generally strong concern about the need to protect property rights provides at least some support for the former.
Two well-known 1790’s judicial opinions written by Supreme Court justices reinforce that conclusion. In Vanhorne’s Lessee v. Dorrance (1795), a decision written by Supreme Court Justice William Paterson, while temporarily serving on a lower court (as was common in that era), referred to eminent domain as “a despotic power” that necessarily “exists in every government.”13 But he also emphasized that the power could only be exercised “in urgent cases, or cases of the first necessity” and that “a case of necessity . . . , can never occur in any nation” where the legislature seeks to “take land from one citizen, who acquired it legally, and vest it in another.”14 Paterson did not, however, attempt to definitively resolve the issue of whether government has the power to engage in private-to-private takings, even with compensation. Ultimately, he concludes that, even if the government does have that authority, it must at least pay compensation calculated by neutral arbiters or by a court.15
In a separate opinion in the 1798 case of Calder v. Bull, Justice Samuel P. Chase wrote that
[A] law that takes property from A. and gives it to B . . . is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them....To
maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would in my opinion, be a political heresy, altogether inadmissible in our free republican governments.16
Calder involved a challenge to a Connecticut legislative resolution granting a new hearing in a probate trial, which the disappointed heirs challenged as a violation of the Constitution’s ban on ex post facto laws. Chase raised the issue of A to B transfers as a possible alternative justification for invalidating the new hearing but rejected it on the basis that Calder’s heirs had not yet actually acquired a vested property right in their inheritance and therefore could not be dispossessed by it.17
While Justice Chase’s opinion in Calder, like Paterson’s in Vanhorne’s Lessee, did not address an actual eminent domain case,18 the principles expounded in both seem clearly incompatible with a broad interpretation of public use that allows the use of eminent domain to transfer property from one private individual to another any time some public benefit might potentially be achieved thereby. Both opinions express the common Founding-era view that property rights are natural rights that legislatures are not allowed to override, and that state and federal constitutions at least implicitly incorporate those rights.
That view had its origins in prior English legal thought, such as those of the seventeenth-century political philosopher John Locke, whose views on property rights had a major influence on the American founders.19 In a famous passage in the Second Treatise of Civil Government, Locke wrote that because the protection of natural property rights was one of the purposes of government, the state “cannot take from any Man part of his Property without his own consent,” because “I have truly no property in that, which another can by right take from me, when he pleases, against my consent.”20 Locke also argued that exactions necessary for the “maintenance” of government could be imposed on citizens’ “estates” with the consent of “the Majority” rather than of each individual.21 This suggests that taxes and takings of property for use by the government to fulfill its essential functions need only be authorized by elected legislatures. But, although Locke was not completely clear on this point, he apparently believed that the same did not hold true for a generalized power to take property, which requires the “consent” of the property owner, “whatsoever hands” have control of the government—presumably including “hands” elected by the majority.22
William Blackstone’s highly influential 1765 work Commentaries on the Laws of England, which had a major impact on American jurists, reached a similar conclusion much more explicitly and unambiguously. Blackstone emphasized that the law does not allow violations of the right of “private property . . . even for the general good of the whole commu-nity.”23 He specifically rejected the idea of takings for transfer to private parties, even if they might benefit the general public. “If,” as he put it, “a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without the consent of the owner of the land.”24 By contrast, Blackstone was willing to allow condemnation if the property taken were kept by the state.25
Takings for Mill Acts and Private Roads
Despite the founding generation’s generally strong commitment to property rights and the suggestive language in Calder and Vanhorne’s Lessee, many scholars believe that the dominant interpretation of public use in the early republic was a broad one, which would allow condemnations for “public benefit . . . of almost any conceivable kind.”26 The main reasons why so many scholars have reached that conclusion is that state governments in the early republic often authorized the condemnation of property for privately owned mills and private roads.27
In the age before the rise of modern power sources, such as electricity and petroleum-based fuels, mills that harnessed waterpower were an important source of energy for various purposes. Many states adopted mill acts allowing the condemnation of property for use to build dams that would help mill owners harness the water power they needed.28 Often, a mill could not be constructed without flooding private property located near the river or stream that was to be dammed, and eminent domain was used to force unwilling owners of such land to transfer their rights to the mill owners.29 By the late eighteenth century, ten of the thirteen colonies had adopted mill acts allowing the use of eminent domain.30
But the widespread adoption of mill acts does not prove that the founding generation accepted a broad view of public use. Mill acts in the colonial era and the early republic usually authorized condemnations only for grist mills that were “generally required to be open to the public for the grinding of corn.”31 The one common feature of virtually all publicly supported mills in that era was that the owner was required to serve the community at a preset price.32 In that respect, they were roughly analogous to modern public utilities. Even many defenders of the broad interpretation of public use have come to recognize this aspect of early mills.33 As one of them puts it, “Mill Acts that authorized public mills more resemble the chartering of a utility to perform a public function than the condemnation of land for another citizen’s benefit.”34
In the nineteenth century, as we shall see, some states adopted laws authorizing the condemnation of property for power mills, which—unlike grist mills—were not required to serve the public as a matter of legal right.35 But that is of much less relevance to the status of public use at the time of the Founding.36 Moreover, at that point some state courts invalidated laws allowing condemnation for such mills, while others sought to uphold them without endorsing the broad view of public use more generally.37
Early laws allowing the condemnation of land for private roads are stronger evidence of the acceptance of a broad view of public use than the early mill acts were. At least apparently, these laws, which dated back to the colonial era in many states, allowed the use of eminent domain to condemn property for the purpose of building private roads to which the general public did not have a right of legal access.38 Scholars such as Nathan Sales and Lawrence Berger point to these laws as strong evidence that the Founding generation accepted a broad interpretation of public use.39
But matters are far more complex than that. Many of the early private road statutes actually required the owners of roads built on condemned land to allow the general public to use them as public thoroughfares. Courts in Delaware, Massachusetts, New Jersey, North Carolina, Pennsylvania, and Vermont eventually interpreted their states’ early private road statutes in this way.40 Such roads were “open to use by the general public as completely as if they were highways, and they consequently formed a part of the general public road system of the state.”41 As an 1847 Delaware Supreme Court decision interpreting that state’s longstanding private road legislation put it, “The land is taken for public use, . . . It is a part of the system of public roads; essential to the enjoyment of those which are strictly public; for many neighborhoods as well as individuals would be deprived of the benefit of the public highway, but for outlets laid out on private petition, and at private cost, and which are private roads in that sense, but branches of the public roads and open to the public for the purposes for which they were laid out.”42
The supreme courts of Georgia and Kentucky eventually upheld the private road statutes on the grounds that they enabled landlocked private owners to perform duties of citizenship such as voting and jury service.43 Some colonial-era state legislatures also justified private road takings on the theory that they were needed to enable individuals to assemble for mandatory militia service, as well as other civic duties.44 Condemnation of land for the purpose of enabling individuals to perform public duties is not as fully consistent with a narrow conception of public use as requiring government ownership or use by the public. But neither does it require adoption of the broad view that any use that benefits the public in some way qualifies. If the private individual must have the condemned land to “perform all the duties which are required of him by law,”45 that can be assimilated to a relatively narrow interpretation of public use that requires government ownership, use by the public, or use by private individuals to perform basic civic duties. Using property to perform civic duties owed could be a “public use” in the sense that the owner is using it to engage in activities specifically mandated by the state and required for the operation of government.
Some scholars contend that the founding generation was willing to let legislatures authorize takings for almost any purpose because they adhered to a “republican” ideology. As described by these writers, republicanism held that the public had a single, undifferentiated interest that would be represented by elected assemblies in such a way as to prevent takings that would benefit narrow interest groups at the expense of the general public.46
This is not the place to enter into the long-standing general debate about the extent to which the Founders were influenced by republicanism, with its emphasis on civic virtue, political participation, and the promotion of the common good, as opposed to liberalism, which puts a greater emphasis on individual rights.47 But even if we concede that many of the Founders were influenced by republicanism and its ideal of a homogenous public interest, it is important to emphasize that many of them were deeply suspicious of democracy, and feared that oppressive majorities, special interests, and government officials posed a threat to property rights. This was a major theme in the political thought of James Madison, the author of the Takings Clause.48 Many other leading Founders had similar concerns. According to legal historian and political scientist Jennifer Nedelsky, “[a]ll the Framers recognized the dangers of the ‘democratic element,’ its instability, and its threat to property.”49 As one leading framer, Gouverneur Morris, put it in a speech at the Constitutional Convention, “[e]very man of observation had seen in the democratic branches of the State Legislatures, . . . [and] in Congress changeableness. In every department excesses ag[ainst] personal liberty, private property, & personal safety.”50
Some, including Morris, feared not just that the poor would threaten the property rights of the wealthy, but that the latter would use their political influence to threaten the property and other rights of the common people.51 Moreover, even to the extent that the founding generation was generally republican in outlook and therefore prone to defer to legislatures, it is likely that the Fifth Amendment Takings Clause was an exception to this trend, representing a more liberal view of individual rights and a more skeptical view of the democratic process.52
In sum, we have little specific evidence about the exact definition of “public use” that predominated in the founding era. But leading members of the founding generation did place tremendous general emphasis on protecting property rights, which they regarded as a natural right as well as a beneficial institution. Founding-era views on property rights were also influenced by British political and legal theorists, such as Locke and Blackstone, both of whom explicitly linked natural property rights with opposition to takings for private parties. Many of the founders also feared that an unconstrained democratic process posed grave dangers to property rights, both because tyrannical majorities might threaten property, and because the wealthy could use the political system to promote their own narrow interests. This set of beliefs seems incompatible with an approach to public use that would allow government to condemn property for almost any purpose. Supreme Court justices’ opinions in Calder and Vanhorne’s Lessee strongly suggest that this general outlook indeed translated into opposition to takings that transfer property to private parties without requiring some sort of public access.
Founding-era evidence does not definitively prove that the general understanding of public use at the time endorsed the narrow interpretation rather than the broad one. But the former is far more compatible with the available evidence and the dominant understanding of property rights at the time than the latter.
Public Use in the Nineteenth Century
While there was very little litigation on public use issues during the Founding era, state courts issued numerous rulings on the subject throughout the nineteenth century. The period from the early 1800s to the late nineteenth century was a crucial one in the development of the debate over public use. Beginning in 1776, when Pennsylvania and Virginia became the first states to include public use clauses in their state constitutions,53 almost every state eventually adopted similar clauses, usually with phraseology very close to that of the federal Fifth Amendment. Unlike the federal Public Use Clause, these state public use clauses generated a great deal of litigation during the nineteenth century.
The results of that litigation are historically important in themselves and also as a window on the understanding of public use at the time of the enactment of the Fourteenth Amendment in 1868, the event that made the Bill of Rights applicable to the states. Until that time, the Takings Clause of the Fifth Amendment did not constrain condemnations by state and local governments, because the Bill of Rights was assumed to apply only against the federal government—a conventional wisdom endorsed by the Supreme Court’s well-known unanimous 1833 decision in Barron v. City of Baltimore.54 The case involved an attempt to invoke the just compensation provision of the Takings Clause against a local government by John Barron, the owner of a Baltimore wharf who claimed that he was entitled to compensation for city street construction that had created mounds of sand and earth near his wharf, making it impossible for most ships to dock there.55
The conventional wisdom on nineteenth century state public use doctrine is that it was highly inconsistent, with great divergence between different state courts. As Lawrence Berger puts it in a much-cited article on the history of public use, “by the beginning of the twentieth century, doctrine was in a shambles and predictability of result at a minimum.”56 A well-known anonymous 1949 Yale Law Journal comment similarly concluded that, “[b]y the beginning of the present century, there had developed a massive body of case law, irreconcilable in its inconsistency, confusing in its detail, and defiant of all attempts at classification.”57
The conventional wisdom is partly accurate. There was indeed considerable divergence over the interpretation of public use clauses in different states. But if we systematically consider all of the states where courts issued opinions on the issue, a different picture emerges. While a significant minority of state supreme courts dissented, a substantial majority endorsed the narrow view of public use over the broad one. The few federal Supreme Court decisions that touch on the subject also tended to support the narrow view. The narrow interpretation of public use was also endorsed by the two leading treatises on the subject, those of John Lewis,58 and Michigan Supreme Court Justice Thomas Cooley, who was also a prominent law professor and legal scholar.59
Nineteenth- Century State Court Interpretations of Public Use
By the late 1870s, a period that is relevant because it includes the era when state court decisions were made by jurists from the generation that witnessed the enactment of the Fourteenth Amendment, a total of twenty-five state supreme courts had issued decisions addressing the definition of “public use” under their state constitutions. Of these, sixteen adopted the narrow view of public use or something close to it, and nine adopted the broad one. This history is summarized in table 2.1.
I count a state supreme court as having adopted the narrow or broad interpretation if it issued a decision indicating that that approach is the general rule to be followed in public use cases during the period up to 1877, unless it later adopted a different standard during the same time period, in which case the later decision predominates. One state (Alabama) adopted the narrow definition in an 1859 decision without overruling an earlier 1832 case that adopted the broad one, though it sought to reinterpret it.60
Many of the cases adopting the narrow definition of public use involved challenges to mill acts, which are discussed later in this chapter. Others addressed condemnations for privately owned roads,61 or for private railroads. As the Delaware Supreme Court ruled in 1839, railroad takings could only be permitted if the railway is “designed for use by the public,” which is given a right to use the railway “by all upon the same terms.”62
Most of the decisions endorsing a broad definition upheld mill acts.63 Broad public use decisions in western states involved condemnations for natural resource extraction industries such as mining,64 or irrigation and drainage.65
Two states, Mississippi and Pennsylvania, adopted highly equivocal approaches to “public use,” from which I find it virtually impossible to determine whether they endorsed the broad view or the narrow one. An 1845 Pennsylvania Supreme Court decision upheld the condemnation of property for a public landing.66 The court noted that “The right of eminent domain does not authorize the government to take the property of the citizen for the mere purpose of transferring it to another.”67 In order to be constitutional, a taking must “must be for the use of the public, to be determined in the first place by the legislature.”68 But the court did not explain whether “for the use of the public” means a property that the public have a legal right to use, or merely one that might potentially benefit the public in some way. Surprisingly, later nineteenth-century Pennsylvania decisions failed to resolve this ambiguity until the state supreme court embraced the narrow view in 1891.69
Mississippi rulings from this period were similarly ambiguous. Brown v. Beatty, a much-cited 1857 state supreme court decision ruled that eminent domain could be used to condemn property and transfer it to a private corporation in order to build “public works, intended to promote the interests of the community” and that such public uses can be undertaken by “[a] corporation created by the legislature with a view to the construction of a work of public utility.”70 But the ruling failed to explain whether “public works” and “works of public utility” must be open to the public as a matter of right in order to qualify as public uses.71 The taking in question in Brown itself was one for the benefit of a railroad corporation, and railroads are common carriers required to serve the public; thus, the taking qualified even under the narrow view of public use. What is not clear is whether the court restricted itself to the narrow view or not. Later nineteenth-century decisions failed to resolve this conundrum.
I have chosen 1877 as the cutoff date for this analysis because that was the point at which the political dominance of Reconstruction-era Republicans decisively eroded, and majority public and elite opinion moved away from the views that influenced the framing and ratification of the
Table 2.1 State Court Interpretations of Public Use as of 1877
|
State |
Definition of Public Use |
Date of Decision |
|
Alabama |
Narrow |
18591 |
|
California |
Narrow |
18572 |
|
Connecticut |
Broad |
18663 |
|
Delaware |
Narrow |
18394 |
|
Florida |
Narrow |
18595 |
|
Georgia |
Broad |
18776 |
|
Illinois |
Narrow |
18667 |
|
Indiana |
Narrow |
18738 |
|
Iowa |
Narrow |
18689 |
|
Kansas |
Broad |
187010 |
|
Maine |
Narrow |
185511 |
|
Maryland |
Broad |
187312 |
|
Massachusetts |
Broad |
186013 |
|
Michigan |
Narrow |
187714 |
|
Minnesota |
Narrow |
186915 |
|
Missouri |
Narrow |
185816 |
|
Nevada |
Broad |
187617 |
|
New Hampshire |
Broad |
186718 |
|
New Jersey |
Broad |
183219 |
|
New York |
Narrow |
183520 |
|
Ohio |
Narrow |
184021 |
|
Oregon |
Broad |
187022 |
|
Tennessee |
Narrow |
186723 |
|
Vermont |
Narrow |
187124 |
|
Wisconsin |
Narrow |
187025 |
Fourteenth Amendment.72 The Compromise of 1877, under which northern Republicans agreed to significantly reduce federal protection of the rights of southern African Americans, is usually considered the end of the Reconstruction era.
Judicial decisions after that point are therefore less reliable as evidence of the understanding of public use at the time the Fourteenth Amendment was drafted and ratified in the 1860s. Extending our reach beyond 1877 would, however, only further reinforce the conclusion that the narrow view was dominant. Between 1880 and 1905, an additional nine state supreme courts adopted the narrow view,73 while only two additional states endorsed the narrow one.74
The Nineteenth- Century Mill Act Cases and Public Use
As in the Founding era, condemnations for mills were among the most important uses of eminent domain during the early to mid-nineteenth century. Although they were far from the only public use decisions during this era, it is important to examine these cases, both because mills had substantial political and economic significance in their own right and because they are often cited in support of the broad interpretation of public use.
While eighteenth century mill acts generally authorized condemnation only for grist mills that were open to the public as a matter of right, in the early nineteenth century, many states passed mill acts authorizing the use of eminent domain for power mills that were purely private and were not required to serve all comers who could pay their fees.75 The widespread acceptance of such mill acts is often seen as proving “the early acceptance of the broad view that it was the great advantage to the public which justified the taking, . . . even though the public had no right to use the property.”76
But the actual history of nineteenth-century mill act cases is much more complicated. Several state supreme courts did indeed uphold them on the basis of a broad interpretation of public use, including Connecticut, Massachusetts, New Hampshire, and New Jersey.77 On the other hand, courts in several other states upheld their mill acts only on the basis of long-standing usage and acquiescence by state authorities, without endorsing the broad view of public use more generally. These states included Iowa, Kansas, and Nebraska.78 The supreme courts of Maine, Minnesota, and Wisconsin upheld their states’ mill acts on the basis of prolonged acquiescence while simultaneously endorsing the narrow view of public use as the general rule.79
An 1855 Maine Supreme court ruling concluded that “private property can only be said to have been taken for public use when . . . the public have certain well-defined rights to that use secured, as the right to use the public highway . . . But when it is so appropriated that the public have no rights to its use secured, it is difficult to perceive how such an appropriation can be denominated a public use.”80 The court only upheld the mill act because of “its great antiquity, and the long acquiescence of our citizens in its provisions,” and emphasized that it was not “inclined to extend its peculiar provisions by implication.”81 An 1860 Wisconsin Supreme Court decision upheld its state’s mill act only because of previous precedent and because “large amounts of capital have been invested, and most important rights acquired in mills and water powers, under the impression that [the earlier 1849 ruling] would be adhered to by the courts of this state.”82 The court made clear that, otherwise, it would only uphold mill condemnations if the public had a legal right to use the facilities.83 An 1869 Minnesota Supreme Court opinion similarly upheld its state’s mill act based on adherence to precedent, while simultaneously rejecting the broad interpretation of public use as a general rule.84 The supreme courts of Alabama, Georgia, Michigan, New York, Vermont, and West Virginia all concluded that mill acts were actually unconstitutional.85
In an 1885 decision, the federal Supreme Court rejected a claim that mill act takings violate the Due Process Clause of the Fourteenth Amendment, by concluding that they do not really involve the use of eminent domain at all, due to the fact that it was a mere regulation of “the manner in which the rights of proprietors of lands adjacent to a stream may be asserted and enjoyed.”86
Overall, the mill act decisions roughly mirror the nineteenth-century distribution of judicial opinion on public use more generally. If we combine the six states that concluded that mill acts were unconstitutional with the three that ruled they were permissible while simultaneously endorsing the narrow view of public use more generally, it turns out that the nine state supreme courts embracing the narrow view of public use in these cases significantly outnumbered those that endorse the broad one in rulings upholding them (four).87
It would be a mistake to conclude that the mill act cases are by themselves strong evidence that the narrow view predominated. It is still, after all, notable that more state supreme courts upheld these acts than invalidated them. But the way most of them did it at least indicates that the mill act cases do not undermine the more general conclusion that states embracing the narrow view predominated over those embracing the broad one.88
Nineteenth- Century Federal Public Use Decisions
Federal public use decisions in the nineteenth century were extremely limited. But the few extant cases from the early nineteenth century generally support a narrow approach to public use more than the broad one.
The Supreme Court did not rule that the federal government had the power of eminent domain until 1875.89 And even after that time, federal takings were very rare, especially ones that might potentially run afoul of a narrow interpretation of public use. Moreover, the Court also did not recognize that the Bill of Rights—including the Public Use Clause of the Fifth Amendment—applied to the states.90 In 1896, the Supreme Court specifically noted that “the fifth amendment, which provides, among other things, that such property shall not be taken for public use without just compensation, applies only to the federal government.”91 During the late nineteenth and early twentieth centuries, the Court did consider numerous cases challenging takings under the Due Process Clause of the Fourteenth Amendment. These decisions were often deferential to state governments; but they do not directly bear on interpretations of the Public Use Clause of the Fifth Amendment.92
An early nineteenth-century federal Supreme Court discussion of the public use issue leans toward the narrow view. In an 1829 opinion authored by Justice Joseph Story, who was also a leading treatise writer on constitutional law, the Court stated that “[w]e know of no case, in which a legislative act to transfer the property of A. to B. without his consent, has ever been held a constitutional exercise of legislative power in any state in the union. On the contrary, it has been constantly resisted as inconsistent with just principles, by every judicial tribunal in which it has been attempted to be enforced.”93 Such an act would be inconsistent with “[t]he fundamental maxims of a free government [which] seem to require, that the rights of personal liberty and private property should be held sacred.”94 In his influential 1833 Commentaries on the Constitution of the United States, Story wrote that “in a free government, almost all other rights would become utterly worthless, if the government had an uncontrollable power over the private fortune of every citizen. One of the fundamental objects of every good government must be the due administration of justice; and how vain it would be to speak of such an administration, when all property is subject to the will or caprice of the legislature, and the rulers.”95
In 1848, the Court considered a case where the corporate owner of a franchise to operate a bridge that had been condemned in Vermont claimed that the taking violated the Contracts Clause of the Constitution by overriding the charter under which the firm previously operated the bridge.96 The Contracts Clause bans states from adopting laws “impairing the Obligation of Contracts.”97 The Court concluded that there was no unconstitutional impairment of a contract because the property was taken through eminent domain for a public use.98 The majority opinion did not address the issue of what qualifies as a public use, simply assuming that a public bridge does so. But, in a separate opinion, Justice Levi Woodbury endorsed the narrow view of eminent domain, writing that a condemnation for a road or a bridge would not be permissible “if the use of it be not public, but merely for particular individuals, and merely in some degree beneficial to the public. On the contrary, the user must be for the people at large,—for travelers,—or all,—must also be compulsory by them, and not optional with the owners,—must be a right by the people, not a favor.”99
Woodbury’s view was not by itself definitive. But it is notable as the most clear and specific nineteenth-century Supreme Court opinion addressing the question of what qualifies as a public use and for its specific repudiation of the broad view that any use “beneficial to the public” might qualify.
In a rare case where the late nineteenth-century Court considered a challenge to a federal condemnation—one that therefore could be attacked under the Takings Clause even without incorporation—it suggested that private-to-private condemnations should receive greater judicial scrutiny than those for purposes that fit the narrow definition of public use. In the 1896 case of United States v. Gettysburg Electric Railway Co.,100 the Court considered a challenge to the federal government’s condemnation of private property for the purposes of preserving the Gettysburg battlefield and building monuments to the soldiers who had fallen in the Civil War’s greatest battle.101
The Gettysburg case upheld the challenged taking,102 and this holding is usually seen as an example of the Fuller Court’s deference to legislatures on public use questions.103 Justice Clarence Thomas’s Kelo dissent harshly criticizes as excessively deferential Gettysburg’s statement that “when the legislature has declared the use or purpose to be a public one, its judgment will be respected by the court, unless the use be palpably without reasonable foundation.”104 However, both Justice Thomas and academic commentators ignore the fact that this language is almost immediately followed (in the very next paragraph) by the qualification that broad deference to legislative judgment is only due in cases “where the land is taken by the government itself.”105 The Gettysburg Court goes on to note that
[i]t is quite a different view of the question which courts will take when this power is delegated to a private corporation. In that case the presumption that the intended use for which the corporation proposes to take the land is public is not so strong as when the government intends to use the land itself.106
This passage from Gettysburg does not clearly endorse the narrow view of public use. But it does suggest that private-to-private takings are treated differently from those where the government “intends to use the land itself” and deserve less deference from the courts.
Public Use and the Debate over Emancipation
in the District of Columbia
One of the very rare nineteenth-century conflicts over public policy where the federal government attempted an action that might be seen as pushing the limits of public use was the recurrent debate over emancipation in the District of Columbia. In 1835-36 and again in 1862, when the measure passed during the Civil War, Congress considered legislation that would abolish slavery in the District of Columbia.107 Unlike territory controlled by state governments, the District was under direct federal government rule. Therefore, the Fifth Amendment applied to takings in the District, much like with any other takings by the federal government.
Slave owners and their defenders considered slaves to be property no less than land or inanimate objects. Because the freed slaves would be their own owners rather than transferred to government ownership, if emancipation constituted a taking of property, it would not be permissible under the narrow definition of public use. This argument was emphasized by congressional opponents of emancipation in both 1835
and 1862. Both the criticisms and the responses of supporters shed light on nineteenth-century understandings of public use. The 1862 debate is particularly relevant, because it occurred just six years before the ratification of the Fourteenth Amendment, which incorporated the Fifth Amendment against state governments.
Because they explicitly focused on the public use question, the DC emancipation debates are far more relevant than other, more famous, nineteenth-century conflicts over slave owners’ supposed property rights, such as the Supreme Court’s notorious decision in Dred Scott v. Sandford and the debate triggered by Abraham Lincoln’s September 1862 Emancipation Proclamation, which freed slaves in the rebel Confederate states. In Dred Scott, Chief Justice Roger Taney concluded that Congress lacked authority to abolish slavery in federal territories not because it was a violation of the Public Use Clause, but because it violated the Due Process Clause of the Fifth Amendment by supposedly depriving individuals of property without due process of law.108 The Emancipation Proclamation was not regarded as a taking by its supporters, because it was considered an exercise of presidential war power, which is one reason why it did not include any compensation for southern slave owners.109
In both the 1835-36 and 1862 debates, opponents of emancipation often cited the narrow view of public use in support of their claims that emancipation is unconstitutional, even if accompanied by monetary compensation for slave owners. In the 1835-36 debate, for example, Virginia Democratic Representative John Robertson argued that “[t]o found a claim for taking private property, it must be wanted for public use . . . No attempt can be successfully made to construe these terms as conferring a right on Congress to seize upon private property, whenever they may suppose the public good, the general welfare, require it....You
cannot take the property of one man to bestow upon another.”110 Similarly, in the 1862 debate, Kentucky Democratic Senator Lazarus Powell—a slave state senator who had remained loyal to the Union—argued that DC emancipation violated the Public Use Clause because the property taken was not put to a public use but “turned adrift.”111
It is not surprising that defenders of slavery would seize on any possible argument against emancipation. Both contemporaries and later scholars had every reason to view their motives with great suspicion. Still, it is telling that they placed such heavy emphasis on the narrow definition of public use. This is at least suggestive of its acceptance in the legal culture of the time.
The arguments of defenders of emancipation are perhaps even more significant. It is telling that most of them did not rely on the broad interpretation of public use. That theory is noticeable here precisely because of its absence, since it would have provided an easy way around public use objections to the constitutionality of emancipation. Instead of the broad view of public use, supporters of emancipation usually argued that abolition of slavery was not really a taking at all, because property in slaves was not a natural right but merely the creation of positive law. And if slavery was merely a legislative creation, it was not a true property right and could be revoked by the legislature at will.
This distinction between natural and legislatively created property rights may seem strange to modern lawyers accustomed to the notion that all property is purely the creation of positive law. But it was a commonly accepted view in the nineteenth century, particularly among opponents of slavery. The idea that property rights in slaves are not natural but purely a product of legislative creation was the dominant view in many states in the late eighteenth and early nineteenth centuries, including some in the South.112 It underpinned the standard antebellum view that slavery could not exist in the absence of express authorization by the legislature and that a slave was presumed to become free if his or her master permanently moved the slave into a free state.113 By the 1860s, abolitionists had long contended that the legislatively created nature of slavery meant that masters had no real property rights or at least none that could not be abolished by the legislature at will.114
In the 1862 debate, prominent Republican Senator Lot Morrill argued that the Takings Clause simply did not apply to slavery because “I hold that there is no private property in slaves, in the sense in which we have property in lands, or property in horses or other animals. It has a different origin; slavery is founded in force, . . . [and] never is maintained anywhere accept by statute.”115 New Hampshire Republican Senator Daniel Clarke similarly rejected the applicability of the Takings Clause by “deny[ing] entirely the property of any man in man.”116 Other defenders of emancipation in both the 1835-36 and 1862 debates made the same point, including such prominent Republican abolitionists as Massachusetts Senator Charles Sumner in 1862.117 Similar arguments were advanced in a well-known 1831-32 debate on emancipation in the Virginia state legislature.118
In the 1835-36 DC debate, one proponent of emancipation, Senator Samuel Prentiss of Vermont, did endorse the broad view of public use and adopt it as a justification for emancipation, claiming that “the word use, in the constitution, is to be understood in a liberal sense, as equivalent to purpose or benefit.”119 But it is notable that he was the only one to take this position in 1835-36 and even more notable that none of the defenders of emancipation adopted it in 1862, despite repeated invocation of the narrow definition of public use by opponents.
It is possible that some supporters of emancipation avoided asserting the broad view of public use because it—unlike the argument that slave owners had no constitutional property rights at all—would require Congress to pay compensation to the slave owners.120 However, the 1862 bill that passed Congress did in fact include considerable compensation of up to $300 per slave, a provision that was supported as politically expedient even by some staunch abolitionists, such as Senator Sumner.121 Three hundred dollars in 1862 is very roughly equivalent to about $7,000 in today’s currency, according to various inflation calculators.122
The debates over emancipation in the District of Columbia are not by themselves definitive evidence of the understanding of public use at the time. But the extensive reliance on the narrow definition by opponents and the near-total lack of reliance on the broad view by supporters at least reinforce other evidence suggesting that the narrow view enjoyed more widespread acceptance.
Thomas Cooley and John Lewis on Public Use
In addition to being endorsed by a majority of nineteenth-century state court rulings on the issue, the narrow interpretation of public use was also defended by Michigan Supreme Court Justice Thomas Cooley and prominent legal commentator John Lewis, authors of the leading treatise treatments of public use in the nineteenth century. Cooley was well known as perhaps the most influential late nineteenth-century authority on state constitutional law,123 while Lewis was the author of the leading nineteenth-century treatise on eminent domain law.124
In his highly influential 1868 work, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Powers of the States of the American Union, Cooley forcefully defended the narrow interpretation of public use, arguing that “public use implies a possession, occupation, and enjoyment of the land by the public or public agencies; and there could be no protection whatever to private property, if the right of the government to seize and appropriate it could exist for any other use.”125
He emphasized that the alternative broad definition of public use would license takings for virtually any purpose because “there are many ways in which the property of individual owners can be better employed or occupied when the general public is considered than it actually is by the owners themselves.”126
Cooley recognized that “[t]here is still room . . . for much difference of opinion as to what is a public use,” and he admitted that many states had reached decisions contrary to the rule he preferred.127 But he also contended that the trend of opinion was moving in his direction and that decisions like those upholding the mill acts would probably not be reached “in any State in which this question would be a new one, and where it would not be embarrassed by long acquiescence and judicial as well as legislative precedents.”128
Writing twenty years later in 1888, Lewis reached very similar conclusions. He too contended that the narrow interpretation of public use was correct, in part because “it is the only view which gives the words any force as a limitation” on government power over private property.129 Like Cooley, Lewis recognized that there was considerable diversity in state decisions on public use but simultaneously, argued that states were gradually moving in what he considered the right direction.130
Less well-well known late nineteenth-century treatises on eminent domain law, such as those of Henry Mills and Carman Fitz Randolph, also concluded that the narrow view was dominant.131 On the other hand, it is worth noting that prominent legal scholar Christopher Tiedeman— who was not an eminent domain specialist—advocated the broad view, which he claimed had become dominant as of 1886, but without surveying relevant case law.132
The views of Cooley, Lewis, and other treatise writers do not by themselves prove that the narrow interpretation of public use was the dominant one at the time they wrote. But they do show support for it by writers who were the leading authorities on the subject among legal elites of the era. As we shall see, their views are relevant to the debate over the original meaning of public use at the time the Fourteenth Amendment was enacted.
The Triumph of Judicial Deference
The terms “public use” and “public purpose” were sometimes used interchangeably even in the nineteenth century. An 1894 treatise on eminent domain noted that, in the context of takings “use . . . is interchangeable with purpose.”133 But it was only in the twentieth century that, in the dominant view of jurists and commentators, public use was equated to public purpose in such a way as to require virtually unlimited judicial deference. This part of the history of public use can be summarized relatively quickly, as there is little dispute about the main points.
Beginning in the early twentieth century, judicial enforcement of the narrow interpretation of public use came under attack as part of the broader Progressive critique of judicial protection of property rights and economic liberties.134 Unlike their modern liberal successors, many Progressives also abhorred judicial enforcement of individual rights more generally, including “noneconomic” ones.135 The Progressives were hostile to judicial protection for property rights because they believed it impeded effective economic planning and was a tool that the wealthy wielded to protect their economic interests at the expense of the poor. In the 1930s, the Progressive critique of property rights was bolstered by the widespread perception that laissez-faire economic policies had caused the Great Depression and the terrible suffering that occurred in its wake.136 The Democratic Party, which controlled the presidency for twenty years after 1932, emphasized hostility to judicial invalidation of economic legislation as one of its main litmus tests for appointees to the federal judiciary.137
In the early twentieth century, state courts gradually began to transition from the narrow view of public use to the broad one. A key driver of this transition was the use of eminent domain to condemn blighted and “slum” neighborhoods in urban areas and transfer them to private developers.138 In 1940, an influential survey of public use law by leading eminent domain expert Philip Nichols, Jr., concluded that the narrow view was very much in retreat and that state decisions upholding blight condemnations were the “unkindest cuts to the narrow doctrine.”139 By 1949, a widely cited Yale Law Journal comment pronounced the narrow view to be on “death-watch” and celebrated its likely “permanent internment in the digests that is so long overdue.”140
Federal decisions interpreting the Public Use Clause of the Fifth Amendment gradually moved in the same direction. Some early twentieth-century federal cases interpreting the Public Use Clause still leaned toward the narrow view.141 In a 1916 Supreme Court decision addressing a challenge to a state taking under the Fourteenth Amendment, Justice Oliver Wendell Holmes wrote that “[t]he inadequacy of use by the general public as a universal test is established.”142 But he did not endorse the broad view of public use, and the rejection of the narrow view as “a universal test” left open the possibility that it might be the correct approach in some cases. Moreover, the ruling did not address the federal Public Use Clause.143
In a 1931 Supreme Court decision sometimes interpreted as an endorsement of the broad view of public use,144 the justices ruled that a World War I government order requisitioning electric power belonging to the International Paper Company to deliver to other firms producing items deemed more useful to the war effort qualified as a taking for public use.145 But the Court did not actually address the issue of the definition of public use. The case was an unusual situation where the federal government denied that a taking had occurred at all, so as to avoid having to pay compensation.146 The Supreme Court rejected this theory on the grounds that the government clearly did exercise its power of eminent domain and merely indicated that the fact that the condemned power was then transferred to other private firms did not make it “any less a taking for public use.”147
Although it hinted in the direction of a broad interpretation of public use, the case ultimately turned on the question of whether a taking had occurred at all rather than whether it was for a public use. Even so, three justices dissented without opinion, possibly because they agreed with the lower court’s view that there had not been any exercise of eminent domain, due to the fact that the property in question was not put to a public use.148
In United States ex rel. TVA v. Welch, a 1946 case upholding the condemnation of property by the federal Tennessee Valley Authority, the Court edged still closer to the broad view of public use, noting that “[w]e think that it is the function of Congress to decide what type of taking is for a public use.”149 But the Court’s actual holding was that “the T.V.A. took the tracts here involved for a public purpose, if, as we think is the case, Congress authorized the Authority to acquire, hold, and use the lands to carry out the purposes of the T.V.A. Act.”150 Since the TVA was clearly a government agency, this result was compatible even with a narrow interpretation of public use. In a concurring opinion, Justice Felix Frankfurter emphasized that the Court’s ruling did not mean that Congress had blanket authority to decide what qualifies as a public use and that the “Court has never deviated from the view that under the Constitution a claim that a taking is not ‘for public use’ is open for judicial consideration, ultimately by this Court.”151 Welch implied the correctness of a very broad view of public use but did not fully embrace it.
Berman and Midkiff
In the 1954 case of Berman v. Parker,152 the Supreme Court finally did decisively endorse the broad view of public use. Berman upheld a Washington, DC, condemnation that transferred property to private developers, justified on the grounds of alleviating urban “blight.” Although there was little doubt that the area in question was indeed severely blighted,153 a unanimous Court went beyond the narrower conclusion that government could condemn property for the purposes of alleviating blight, and emphasized the supposed need for extreme deference to all legislative determinations of public use.
Justice Douglas’s opinion for the Court claimed that “[t]he role of the judiciary in determining whether [eminent domain] is being exercised for a public purpose is an extremely narrow one.”154 If the “legislature has spoken, the public interest has been declared in terms well-nigh conclu-sive.”155 The fact that the condemned property was to be transferred to another private owner was specifically rejected as a basis for invalidating the taking or even for subjecting it to greater scrutiny.156 Berman soon became the leading Supreme Court precedent on public use issues, and remained so up to the time of Kelo- perhaps even to the present day.
The condemnation upheld in Berman was part of an urban renewal plan that forcibly displaced some five thousand African Americans and transferred the property they lived on to white real estate developers.157 The urban renewal and blight condemnations it ultimately authorized in other states resulted in the forcible displacement of hundreds of thousands of other people, most of them also poor minorities.158 As legal historian Wendell Pritchett points out, it was both ironic and tragic that a ruling that “enabled institutional and political elites to relocate minority populations and entrench racial segregation . . . was decided just six months after Brown v. Board of Education,”159 by a Court that included nearly all the same justices. “The irony,” Pritchett emphasizes, “is that, at the same time it was deciding Berman, the Court was deciding Brown, which reflects a distrust of government (particularly local government) to protect the interests of minority groups and to treat all citizens equally.”160
In addition to establishing the dominant interpretation of the federal Public Use Clause, Berman also exercised enormous influence over state court interpretations of their state public use clauses. Several state courts had upheld private-to-private blight condemnations as early as the 1930s, led by the New York Court of Appeals’ decision in an influential 1936 case.161 But more did so in the aftermath of Berman, citing its extremely broad interpretation of public use as authority; some also endorsed Berman’s view of public use in cases unrelated to blight.162 Ultimately, Berman was used to justify the condemnation of property for “economic development,” even in cases where the property in question was not blighted. In the most notorious such case, Poletown Neighborhood Council v. City of Detroit (1981), the Michigan Supreme Court upheld an economic development taking that forcibly displaced some four thousand Detroit residents in order to transfer their land to General Motors to build a new auto factory.163
Although Poletown was a particularly blatant example of the then-dominant approach to public use, it also witnessed early indications of dissatisfaction with that orthodoxy. Because of the large number of people displaced and the way the condemnations displaced ordinary people for the benefit of a powerful corporation, the case generated widespread national media and public attention, much of it negative.164 Ralph Nader, the prominent left-wing political activist crusader against corporate abuses played a key role in rallying national opinion against the condem-nations.165 In the Michigan Supreme Court, there were forceful dissents by two justices, an indication that the New Deal orthodoxy on public use did not command universal allegiance among the nation’s judicial elite.166
Despite the then-recent controversy over Poletown, the federal Supreme Court was perhaps even more deferential to government in its next major public use case, the 1984 decision in Hawaii Housing Authority v. Midkiff.167 Midkiff arose from the unusual circumstances of Hawaii. For complicated historical reasons, some 47 percent of the land in Hawaii was owned by “only 72 private landowners,” while another 49 percent was held by the federal or state governments.168 The state claimed that the seventy-two landowners had established an oligopoly in the market for land and decided to establish a program to condemn the property. Although there is serious doubt as to whether there really was a landowner oligopoly setting prices above the market level,169 the Supreme Court accepted the state’s claim that one existed at face value.
While the Court could have upheld the Hawaii condemnations on the relatively narrow ground that “[r]egulating oligopoly and the evils associated with it is a classic exercise of a State’s police powers,”170 it chose—as in Berman—to go beyond the facts of the case and endorsed a much broader doctrine of deference to government power. In a unanimous opinion written by Justice Sandra Day O’Connor, the Court held that the scope of public use is “coterminous with the scope of a sovereign’s police powers” and that takings must be upheld under the Public Use Clause so long as “the exercise of eminent domain power is rationally related to a conceivable public purpose.”171
In light of the extremely deferential language in Berman and Midkiff, most expert observers believed that public use constraints on takings were virtually dead. In a prominent book on constitutional property rights published in 1977, Yale Law School Professor Bruce Ackerman relegated this “important peripheral issue” of public use to a footnote, because “the modern understanding of ‘public use’ holds that any state purpose [that is] otherwise constitutional should qualify as sufficiently public to justify a taking”—even though he himself believed that “there is at least something to be said on the other side.”172 In 1996, historian Buckner Melton wrote that “[t]oday, in Berman’s wake, the broad view [of public use] holds the field completely.”173 As late as 2002, a treatise on takings written by two leading scholars concluded that “nearly all courts have settled on a broader understanding [of public use] that requires only that the taking yield some public benefit or advantage.”174 Even the very few scholars who defended the narrow view during this period tended to be pessimistic about the prospects that it might be effectively revived.175
But these postmortems for the narrow view turned out to be premature. Several state supreme courts held on to important elements of the narrow view even at its nadir between the 1950s and 1970s. The supreme courts of Arkansas, Florida, Kentucky, Maine, South Carolina, and Washington, all rejected private-to-private condemnations for economic development during that time.176 In 1956, the Supreme Court of South Carolina even rejected the constitutionality of blight condemnations.177
By the late 1980s and early 1990s, a rising property rights movement had begun to challenge legal orthodoxy on Takings Clause issues, including public use.178 Beginning in the same period, a new generation of conservative and libertarian public interest law firms—including the Institute for Justice—began to focus on property rights issues with the goal of increasing judicial protection for constitutional property rights.179 In the ten years prior to Kelo, four state supreme courts—Illinois, Michigan, Montana, and South Carolina (which reaffirmed its earlier stance)—held that their state constitutions forbade economic development takings that transfer property to private parties.180 The best known of these decisions was the Michigan Supreme Court’s 2004 ruling in County of Wayne v.
Hathcock,181 which overruled Poletown. With the exception of the Connecticut Supreme Court’s closely divided ruling in Kelo itself, only one state supreme court—North Dakota—had created a new precedent upholding economic development rationale during that time.182
The late 1980s and 1990s also saw a modest revival of protection for constitutional property rights in the Supreme Court. Although the Court did not decide a significant public use case during this period, it did strengthen protection for property owners on other fronts, including requiring compensation under the Takings Clause for a wider range of “regulatory” takings.183
Originalism and Public Use
While the mid-twentieth Century Supreme decisively endorsed a very broad interpretation of public use, it is the history of public use in the founding era and the nineteenth century that has important implications for originalist interpretations of public use. Not all judges and legal scholars are originalists. Many support various versions of “living Constitution” theory, which hold that the meaning of the Constitution should be reinterpreted over time in order to adjust to changing conditions. But originalism has rapidly gained ground among liberal, conservative, and libertarian legal scholars over the last several decades.184 It may even be the dominant school of thought among constitutional theorists today.185 In addition, many scholars and jurists who reject originalism as the sole basis of constitutional interpretation believe that the original meaning is at least one of several considerations that judges should take into ac-count.186 During her 2010 Senate confirmation hearings, liberal Supreme Court Justice and former Harvard Law School Dean Elena Kagan declared that “we are all originalists now.”187 While that statement is an exaggeration, it does testify to the growing influence of originalism on judges and legal scholars.
Initially, most modern originalists were advocates of the “original intent” variant of the theory, which holds that the constitution should be interpreted in accordance with the intentions of the political leaders who drafted the document. Although original intent still has some adher-ents,188 today the dominant school of originalism is “original meaning”: the idea that constitutional interpretation should be based on the public understanding of the text at the time it was enacted.189
In considering the original meaning of the Bill of Rights, some origi-nalists, such as Akhil Amar, Kurt Lash, and Michael Rappaport, have argued that we should focus on the public understanding of its meaning as of 1868, when the Fourteenth Amendment made it applicable to the states, instead of just 1791, when it was first enacted.190 Rappaport has used 1868 evidence to shed new light on the original meaning of the Takings Clause, as applied to the question of what regulatory measures qualify as tak-ings.191 I seek to do the same on the question of the meaning of public use.
The 1868 understanding of public use is potentially relevant under each of the widely accepted theories of incorporation advanced by judges and legal scholars in recent decades. The Supreme Court has long pursued “selective” incorporation of the Bill of Rights under the Due Process Clause, which forbids state deprivations of life, liberty, or property without “due process of law.”192 This theory holds that provisions of the Bill of Rights are incorporated so long as they are considered “fundamental” or “essential to a fair and enlightened system of justice.”193 While a few parts of the Bill of Rights remain unincorporated by the Court under this theory,194 the Supreme Court has recognized the incorporation of the Takings Clause, and virtually no one who supports incorporation at all denies that the Takings Clause and its public use component are among the rights included.
To the extent that the Due Process Clause approach to incorporation is an originalist one, it is certainly possible that the interpretation of “public use” understood to be “fundamental” by the framers and rati-fiers of the Fourteenth Amendment was that which prevailed in 1868. Indeed, the very idea of using the concept of “due process” to protect substantive rights had undergone a long and complex evolution between 1791 and 1868, which influenced the framers of the amendment in a variety of ways.195
Justice Clarence Thomas and many legal scholars claim that the Bill of Rights was actually incorporated under the Privileges or Immunities Clause, which prevents states from abridging “the privileges or immunities of citizens of the United States.”196 Here too, the understanding of the Public Use Clause as of 1868 may well be the one that should be considered as incorporated against the states. As one leading advocate of incorporation under the Privileges or Immunities Clause puts it, “the meaning of the Privileges or Immunities Clause does not ‘incorporate’ the original understanding of the Establishment Clause [of the First Amendment]....
but instead represents the common understanding of the rights of American citizenship in 1868.”197 If the Establishment Clause of the First Amendment is incorporated based on the interpretation of it that prevailed in 1868, then the same is also true of the rest of the Bill of Rights, including the Public Use Clause of the Fifth Amendment.
In order to fully evaluate the implications of originalism for public use, I therefore consider both original meaning and original intent as applied to both 1791 and 1868. In each case, the evidence is equivocal but ultimately cuts in favor of the narrow interpretation of public use.
Original Intent
From an original intent point of view, the Takings Clause (including its public use component) may be easier to study than most other parts of the Constitution, because it was so clearly the personal creation of James Madison. He was its drafter and main advocate, and the clause reflects his strong personal commitment to protecting private property rights.198
As far as is known, Madison never directly commented on the question of whether the Public Use Clause embodies the narrow or broad interpretations of public use. But given Madison’s commitment to property rights and his strong suspicion of legislatures, it seems unlikely that he intended the latter. The same goes for most of the other Founders, who, as discussed earlier, also endorsed a strong natural rights theory of property rights and also tended to be suspicious of legislative infringement on those rights.
In practice, the broad interpretation would leave the door open to “A to B” takings of exactly the kind that most members of the Founding generation considered to be unjust and beyond the legitimate scope of government power. Although not averse to some regulation of property, Madison was particularly concerned about the danger of legislation intended to redistribute property from one individual or group to others.199 Restricting the ability of government to use eminent domain to transfer property to private individuals is clearly responsive to this concern, while allowing any possible public “benefit” to justify a taking goes against it.
It is true that the requirement of compensation might partially alleviate this danger. But, as discussed earlier in this chapter, the dominant view was that even compensated “A to B” transfers violated natural property rights. Moreover, if the compensation comes from the taxpayers rather than the new individual owners of the condemned property, the result would still be redistribution of wealth to a private interest, of the sort Madison feared, albeit in this case some of the cost would be borne by taxpayers rather than the property owner whose land is taken.
By contrast, the narrow interpretation of public use coheres well with Madison’s and other Founders’ desire to prevent government from undermining property rights for purposes of redistribution. By requiring that condemned property either be used by the government or made available for use by the general public, it helps ensure that eminent domain is used only to carry out some other function of government rather than for pure redistribution from one individual to another. In this way, it coheres with Madison’s desire to allow regulation of property for various purposes, while at the same restricting redistribution.200
Moving forward to the adoption of the Fourteenth Amendment in 1868, the original intent evidence is similarly limited, but more supportive of the narrow interpretation. There was very little debate over either public use or the Takings Clause more generally. But the limited discussion that there was suggests that the main goal of incorporating the Takings Clause was to protect the property of African Americans and white supporters of the Union against the depredations of southern state governments likely to be dominated by ex-Confederates. As Representative John Bing-ham,201 the leading congressional framer of the Fourteenth Amendment explained in February 1866, one of the purposes of the amendment was “to protect the thousands and tens of thousands and hundreds of thousands of loyal white citizens of the United States whose property, by State legislation, has been wrested from them under confiscation.”202
The goal was clearly to restrict the power of state governments to threaten the property rights of African Americans and southern whites who had remained loyal during the war or supported the Republican Party afterward. This objective cannot easily be reconciled with allowing those very same state governments to condemn property for almost any purpose they wished, thereby giving them a blank check to condemn the property of both African Americans and white loyalists. The right to private property was a central component of the “civil rights” that the framers of the Fourteenth Amendment sought to protect.203
In both 1791 and 1868, leading framers said little about the definition of “public use” directly. But the narrow conception is a better fit with the limited available evidence and with their overall philosophy and objectives than the broad one.
Original Meaning
Today, original meaning is a far more influential mode of constitutional interpretation than original intent. For that reason, the original meaning of public use is probably more significant than its original intent. Unfortunately, the task of assessing the original meaning of the Public Use Clause is complicated by the reality that advocates of original meaning originalism disagree among themselves about what qualifies as the public meaning of the Constitution. Most importantly, they disagree on the question of whose understanding counts as that of the relevant public.
Some original meaning originalists focus on the actual understanding of the general public at the time.204 Others, including Justice Antonin Scalia and leading originalist legal scholar Randy Barnett, emphasize the understanding of a “reasonable person” at the time of enactment.205 The “reasonable person” might potentially have greater knowledge and understanding of the constitutional text than the average member of the general public.206
In his 2008 majority opinion for the Supreme Court in District of Columbia v. Heller, Justice Scalia wrote that “In interpreting [the Constitution’s] text, we are guided by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning....’
Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.”207 This suggests a very limited view of the knowledge and competence ascribed to the reasonable person. Others appeal to a reasonable reader with vastly greater legal sophistication. For example, Gary Lawson and Guy Seidman postulate a hypothetical “reasonable person” whom they describe as “conversant with legal traditions and conventions of the time” as well as “highly intelligent and educated and capable of making and recognizing subtle connections and inferences.”208 The Lawson-Seidman hypothetical reasonable person is, in their own words, “a formidable intellectual figure.”209
Rather than trying to choose between these different variants of original meaning, I will try to assess the original meaning of public use based on both the likely understanding of the general public and that of a hypothetical “reasonable person” who has far greater than average knowledge.
When it comes to the understanding of the average member of the general public in either 1791 or 1868, it is difficult to reach any conclusions with certainty. We do not have systematic survey data from either period. Moreover, both modern public opinion data,210 and the limited available evidence from the eighteenth and nineteenth centuries,211 suggest that the public is often ignorant about a wide range of even very basic political knowledge. This suggests that many voters in 1791 or 1868 might have simply been unaware of the issue of the definition of public use or perhaps even of the very existence of the Public Use Clause.
It is probably useless to focus on the “understanding” of members of the public who simply had no idea that the Public Use Clause even existed. But those who knew little or nothing beyond the mere text of the clause would be likely to lean toward the narrow view. As even scholars who endorse the broad interpretation of “public use” recognize, the narrow interpretation is better supported by the plain text of the amendment. As a much-cited anonymous 1949 Yale Law Journal comment that otherwise advocates the broad view, put it, the narrow view is “consonant with the commonly understood meaning of the term ‘public use’—a public use exists when the public uses something.”212 The literal meaning of “public use” seems to require some kind of actual use by the public or by their agent, the government.
Both in earlier centuries and today, the word “use” also had a metaphorical meaning. I might be said to “use” someone if I benefit from an activity he or she undertakes. But, in reading a text, especially a formal one, people lacking in specialized knowledge of the subject matter are likely to interpret words in a literal sense, unless there is some strong contextual indication that the metaphorical sense was intended by the author.213 If I write that “Jane is using the lot across the street,” most readers would interpret me as saying that she is physically occupying that property or engaging in some activity on it, as opposed to merely deriving some indirect benefit from it.
At least in a society that valued property rights as much as the eighteenth- and nineteenth-century United States, the intuitive linguistic meaning of “public use” dovetails with the average person’s sense that government cannot simply condemn property for whatever reason it wants. Even today, as the negative public reaction to Kelo shows,214 that view is widespread, despite the fact that the right to private property occupies a lower status in our political culture than in 1791 or 1868. Thus, it seems likely that the average “reasonable,” but not very knowledgeable, member of the general public at the time of the Founding, or in 1868, would interpret “public use” in accordance with the narrow view.
What of the more sophisticated observer who is “conversant with legal traditions and conventions of the time?”215 Such an individual would realize that there are two possible conflicting interpretations of “public use” and might have some doubts on the subject as a result. But, at the time of the Founding, he would know that the narrow view coheres better with the natural law view of property rights dominant during that era.
The sophisticated observer would also know of the long-standing canon of legal interpretation, which requires that words in a legal document should not be interpreted in such a way as to render them redundant. As the Supreme Court explained in 1840, “[i]n expounding the Constitution of the United States, every word must have its due force, and appropriate meaning” and that “[n]o word in the instrument . . . can be rejected as superfluous or unmeaning.”216 And if “public use” means any possible public benefit, then the term becomes essentially superfluous, as virtually any taking that benefits an individual could create such a benefit to some degree. The Takings Clause could then simply read “nor shall private property be taken without just compensation” without any loss of meaning. As John Lewis put it in his well-known nineteenth-century treatise on eminent domain, “[t]o give these words any effect, they must be construed as limiting the power to which they relate . . . [and] it is evident that the words public use, if they are to be construed as a limitation, cannot be equivalent to the general welfare or public good.”217
In theory, it is possible to imagine some taking that transfers property in a way that creates no public benefit at all. But this is highly improbable in reality, given that almost any taking benefits some person in some way, which in turn could be said to benefit society more generally. As the Supreme Court of Ohio put it in 1884, “[t]he prosperity of each individual condues, in a certain sense, to the public welfare, but this fact is not a sufficient reason for taking other private property to increase the prosperity of individual men.”218
The legally knowledgeable observer of 1868 would also be aware that the narrow interpretation of public use was the majority among state courts at the time.219 In addition, these decisions are in themselves an indication of what actual legally sophisticated observers believed, and at least an approximation of the likely beliefs of the Lawson-Seidman hypothetical sophisticated reasonable reader. The views of leading late nineteenthcentury treatise writers—especially Judge Thomas Cooley, whose Constitutional Limitations was published in 1868—might also serve as a proxy for the opinions of legally sophisticated observers.220 The same goes for the extensive reliance on the narrow view of public use in the debates over emancipation in the District of Columbia and the relative lack of reliance on the broad view by opponents of slavery.221 Those debates might have been especially informative for the legally knowledgeable, since they focused directly on the Public Use Clause of the federal Constitution, not just those of the states. The views of Supreme Court Justices Joseph Story and Levi Woodbury would point the sophisticated observer in the same direction.222 Finally, the legally sophisticated observer of 1868 was likely to know that the protection of the property rights of African Americans and white Unionists in the South was one of the major goals of the Fourteenth Amendment and that the narrow interpretation of public use fits that purpose better than the broad one.
It is theoretically possible that the legally knowledgeable observer would interpret “public use” to mean something in between the narrow and broad conceptions. For example, he could interpret it to allow private-to-private condemnations only if they create a really large public benefit but not if the benefit is a small one. Something like this approach has been adopted by some state courts in the twentieth and twenty-first centuries.223 But such an interpretation was rarely if ever actually advanced by jurists and legal commentators in the eighteenth and nineteenth centuries, perhaps in part because of a widespread assumption that such questions of degree of harm and benefit were inherently outside the scope of judicial authority and left up to the legislature.224 It also seems unlikely that such an intermediate option would occur to legally unsophisticated readers, since it does not seem to square with the plain text of the amendment, which refers to “public use” in categorical rather than relative terms.
None of these many considerations qualifies as decisive proof of original meaning by itself. But in combination, they make a fairly strong case, especially compared to the significantly weaker evidence on the other side.
There is no single piece of “smoking gun” evidence supporting either the narrow or the broad interpretation of the original meaning of public use. But accumulated weight of imperfect evidence strongly favors the former.
The Signifi cance of Uncertainty
Although the weight of originalist evidence supports the narrow interpretation of public use much more than the broad one, the latter does still have some support. It is possible to argue that, when the case for the constitutionality of a law is at least plausible, courts should defer to the political branches rather than strike down the statute.
Whatever the merits of this position, the originalist case for it is weak. At the time of the Founding, the dominant view was that judges should strike down unconstitutional legislation without giving special deference to the legislature, indeed that they had a special duty to engage in independent judgment on constitutional issues.225 As Alexander Hamilton famously explained in Federalist 78, “the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”226 Hamilton envisioned the federal courts as “the bulwarks of a limited Constitution against legislative encroachments.”227 They could hardly play that role by deferring in most cases to the very legislatures whose “encroachments” they are intended to check.
An originalist could potentially conclude that deference to the legislature in the face of uncertainty is appropriate in cases where the available evidence is close to evenly balanced or when there simply is not any substantial evidence either way. But, at the very least, originalist judges have an obligation to strike down a law when there is a substantial preponderance of evidence against its constitutionality. Otherwise, it is difficult to see how judges could discharge their duty of independent judgment or serve as Hamiltonian bulwarks against legislative overreaching.
Moreover, originalists who would strike down laws only when there is no reasonably plausible argument in their defense are placed in the uncomfortable position of rejecting some of the Supreme Court’s most hallowed precedents, which defenders of originalism have tried hard to find originalist justifications for, lest originalism itself be discredited by its failure to endorse them. To take two of the most obvious examples, there are serious and plausible originalist arguments against the validity of Brown v. Board of Education,228 and Loving v. Virginia, the Court’s 1967 decision striking down laws banning interracial marriage.229 Modern originalists who seek to prove that these results are compatible with their theory recognize that there are serious opposing arguments and that long-standing conventional wisdom cuts against their position.230 If a strong preponderance of evidence can overcome initially plausible opposing arguments in these cases, the same should apply to public use cases.
To be sure, some originalists in the 1970s and 1980s did seem to argue that the courts should defer to the political process whenever possible, most notably Judge Robert Bork, the famous originalist jurist and legal scholar. But Bork also argued for strong judicial review in cases where the historical evidence suggested that a law violates the original meaning.231 Bork’s defense of judicial restraint was based on the assumption that “[t]he makers of our Constitution . . . provided wide powers to representative assemblies and ruled only a few subjects off limits by the Constitution.”232 But in cases where this assumption proves to be invalid, Bork believed judges must enforce the original meaning of the Constitution, a view that he never fully reconciled with his simultaneous commitment to judicial deference to democracy.233 To conclude that judicial deference to the democratic process must trump original meaning in all cases where there is a minimally plausible argument in defense of the law at issue is to sacrifice originalism to democratic majoritarianism.
Two Nonmainstream Objections
My analysis of the original meaning of public use implicitly rests on two widely but not universally accepted assumptions: that the Fourteenth Amendment “incorporates” all or most of the Bill of Rights against the states; and that the Public Use Clause imposes at least some constraint on takings, even if only a minimal one. The few originalists who reject one or both of these conclusions also have strong reason to reject the narrow interpretation of public use or its application against state governments. These two out of the box objections deserve brief consideration.
Thanks in large part to the pathbreaking work of Akhil Amar and Michael Kent Curtis, modern originalists generally accept the idea that the original meaning of the Fourteenth Amendment requires the application of the Bill of Rights to the states.234 And virtually everyone who accepts even partial incorporation of the Bill of Rights also accepts the view that the Takings Clause and its public use component are among the rights incorporated.235
A minority of modern scholars still reject incorporation completely, however.236 In this book, I do not consider their position in detail. The issue of incorporation is so large a tail that it would quickly start wagging the dog of public use if I tried to cover it here. In my view, the arguments of Amar and Curtis are very powerful. If we reject them, it is not only the Fifth Amendment that would not bind the states, but every other part of the Bill of Rights. At least so far as the federal Constitution is concerned, states would be free to censor speech and suppress religious worship protected by the First Amendment, engage in searches of homes and seizures of property forbidden by the Fourth Amendment, and inflict cruel and unusual punishment banned by the Eighth Amendment.
In a 1993 article, prominent constitutional law scholar Jed Rubenfeld argued that the Public Use Clause of the Fifth Amendment imposes no substantive restrictions on eminent domain at all. The text of the Takings Clause states that “nor shall private property be taken for public use, without just compensation.”237 Rubenfeld contends that this language means merely that, if property is taken for public use, the government must pay compensation, whereas if it is taken for other purposes, no compensation is owed at all.238 Retired Supreme Court Justice John Paul Stevens, the author of the majority opinion in Kelo, has recently endorsed this view as well.239
As a purely textual interpretation of the Fifth Amendment, Ruben-feld’s reading is plausible. However, it is at least equally plausible to interpret the text as implicitly assuming that takings for private uses are forbidden, and therefore there is no need to provide compensation for them. That assumption is compatible with the natural law understanding of property rights common at the time of the Founding, which held that government inherently lacked power to engage in naked transfers of property “from A to B.”240
From the standpoint of originalism, as opposed to pure textualism, Rubenfeld’s argument is weaker still. Without exception, eighteenth- and early nineteenth-century court decisions and statements by the Founders themselves assumed that takings required compensation regardless of whether the property was transferred to government ownership or not.241 In an 1819 letter, for example, James Madison noted that a proposed emancipation of the slaves by the federal government would require compensation under the Constitution, even though the freed slaves would become their own owners rather than the property of the govern-ment.242 In this letter, Madison envisions a constitutional amendment to give the federal government the power to mandate emancipation, which may explain why he was not concerned that the amendment might violate the Public Use Clause; the amendment would supersede that clause insofar as the latter would make emancipation impossible to carry out. But it might not have superseded the requirement of just compensation, which would not block emancipation completely, but merely require payment of a set price to the owners.
Allowing government unrestrained authority to transfer property from one private individual to another without even paying compensation also conflicted with the founding generation’s generally strong emphasis on property rights. It seems strange, to say the least, that the Founders would have required compensation for takings needed for even the most essential public uses but no protection at all against takings for even the most blatant private ones.
Conclusion
During the Founding era and throughout much of the nineteenth century, the narrow interpretation of public use—while hardly uncontested—was generally the dominant view. It coheres with the original meaning of the Public Use Clause better than the broad alternative. This has important implications for originalist interpretations of the Clause.
During the mid-twentieth century, the narrow interpretation was routed in the federal Supreme Court and in most state courts as well. Leading jurists and legal scholars came to believe that it was largely dead. But even at the height of its dominance in the 1960s and 1970s, the broad interpretation continued to be rejected by some state supreme courts. And in the decade leading up to Kelo, the challenge to the reigning orthodoxy had begun to gain ground. As Kelo would dramatically demonstrate, that orthodoxy was more vulnerable than most experts believed. On that question, the activist lawyers of the Institute for Justice would prove to be more prescient than the dominant view among academics. Before considering the result of their efforts, we first take a look the real-world impact of the condemnations the broad view of eminent domain authorized.
Sadler v. Langham, 34 Ala. 311 (1859).
Billings v. Hall, 7 Cal. 1 (1857). For a detailed discussion of mid-nineteenth century California public use precedent, which concludes that it generally endorsed the narrow view, see Timothy Sandefur, “A Natural Rights Perspective on Eminent Domain in California: A Rationale for Meaningful Judicial Scrutiny of ‘Public Use,’ ” 32 Southwestern University Law Review 569, 620-24 (2003).
Olmstead v. Camp, 33 Conn. 532 (1867).
Whiteman v. Wilmington & S.R. Co., 2 Harr. 514 (Del. Super. 1839).
Bradford v. Cole, 8 Fla. 263 (1859).
Hand Gold Mining Co. v. Parker, 59 Ga. 419 (1877).
Nesbitt v. Trumbo, 39 Ill. 110 (1866).
Wild v. Deig, 43 Ind. 455 (1873).
Bankhead v. Brown, 25 Iowa 540 (1868).
Venard v. Cross, 8 Kan. 248 (1871).
Jordan v. Woodward, 40 Me. 317, 323 (1855).
New Cent. Coal Co. V. George’s Creek Coal & Iron Co., 37 Md. 537 (1873).
Talbot v. Hudson, 82 Mass. 417 (1860); See also, Boston & Roxbury Mill Corp. v. Newman, 12 Pick. 467 (Mass. 1832), which points in the same direction, but less clearly.
Ryerson v. Brown, 35 Mich. 333 (1877).
Miller v. Troost, 14 Minn. 365 (1869).
Dickey v. Tennison, 27 Mo. 373 (1858).
Dayton Gold and Silver Min. Co. v. Seawell, 11 Nev. 394 (1876).
Great Falls Mfg. Co. v. Fernald, 47 N.H. 444 (1867).
Scudder v. Trenton Delaware Falls Co., 1 N.J. Eq. 694 (N.J. Ch. 1832); see also Tide Water Co. v. Coster, 18 N.J. Eq. 518 (1866).
Varick v. Smith, 5 Paige Ch. 137, 155-56 (N.Y. Ch. 1835); see also Taylor v. Porter & Ford, 4 Hill 140 (1843).
Buckingham v. Smith, 10 Ohio 288, 297 (1840). See also McQuillen v. Hatton, 42 Ohio St. 202, 204 (1884), which endorses the narrow view more clearly.
Seely v. Sebastia, 4 Ore. 25 (1870).
Memphis Freight Co. v. City of Memphis, 44 Tenn. 419 (1867). A narrow interpretation of public use is strongly implied in an earlier 1832 case, which, however, was decided on statutory grounds. See Harding v. Goodlett, 11 Tenn. 41 (1832).
Tyler v. Beacher, 44 Vt. 648 (1871).
Whiting V. Sheboygan & F. du L.R. Co., 25 Wis. 167 (1870).