The "Public Use" Limit of the Takings Clause

Kelo v. New London

The Government is allowed to take private property for public use, in exchange for just compensation, by its powers of eminent domain. In this case, New London CT plans to use this power to acquire the remaining property it requires for its revitalization project, with the goal of creating in excess of 1000 jobs, as well as increasing the tax base. This in response to the closing of the Naval Undersea Warfare Center in 1996 which resulted in the loss of 1500 jobs. The question in this case is whether or not this project qualifies as "public use."

Connecticut's Supreme Court appealed to a legislative determination (chapter 132) which states that "the taking of land, even developed land, as part of an economic development project is a "public use" and in the "public interest." The Court first explains that "public use" has been interpreted not as "use by the public," in large part due to logistical complications, but rather as use for a "public purpose." The majority then goes on to cite past cases in which it "eschewed rigid formulas" and largely deferred to the legislatures. Because this case deals with a whole plan, which the Court describes as "greater than the sum of its parts," the Court considers it appropriate to rule in terms of the entire plan, as opposed to ruling for or against each petitioner individually. The majority argues that just because a private person or entity is benefited by the taking, this does not diminish the benefit to the public. The argument that the city should have to demonstrate "reasonable certainty" that the public benefits will actually be forthcoming is dismissed as an attempt to have an empirical debate over the wisdom of the city's plan in the courtroom (Comparing this tactic with Lingle v. Chevron). Finally, the Court suggests that any state is free to "plac[e] further restrictions on its exercise of the takings power."

Justice Kennedy, in a concurring opinion first addresses the question in terms of a "rational basis" test, by which he tests whether the taking is meant to benefit a private party. He then rejects the contention that there should be a strong presumption of invalidity for any taking because such a rule "would prohibit a large number of government takings that have the purpose and expected effect of conferring substantial benefits on the public at large and so do not offend the Public Use Clause."

Justice O'Connor, dissenting, makes a simple point that "The trouble with economic development takings is that private benefit and incidental public benefit are, by definition, merged and mutually reinforcing." This being the case, the motive behind the taking is of no consequence and cannot be used to determine valid and invalid takings. Further, the limitation that property can only be taken in an effort at improvement is, at best, redundant with the Due Process Clause. Justice O'Connor then accuses the majority of taking undue comfort in facts peculiar to this case. She also distinguishes the precedents used by the majority, defining Berman as a case regarding blight, and Midkiff as a redistributive solution to "the oligopoly in land ownership" in Oahu, and argues that the takings in both of those cases directly effected the legislative goals.

Justice Thomas, among other things, compares the meaning of the word "use" in this case to more restrictive uses elsewhere in the Constitution, as well as the alternate phrase used in the Constitution "public welfare." He goes on to argue that the Takings Clause is a limitation on power, rather than a grant, therefore, any such taking would have to be connected with a just exercise of Congressional authority. Justice Thomas also suggests that the expansive reading of the Takings Clause seen here originated in the early days of the United States when public projects were more important. The remainder of Justice Thomas' decision is largely a history of eminent domain jurisprudence.