The Dilemma of Defining Public Use: An Examination of Kelo v. City of New London

The dichotomy that conservative Justices face of either following existing precedent or following conservative principles, even if that means disregarding existing precedent, is strongly exemplified in the Kelo v. City of New London (2005) case. This case held that the use of eminent domain to facilitate the transfer of private property from the owner of the property to a private developer for an economic rejuvenation plan qualified as “public use” within the intended purpose of the Takings Clause. The Court ruled that the city was not taking the land only to accrue benefits for the private developers but was following an economic development plan that would benefit the public. The takings would qualify as a public use even if the land was not going to be used by the public and Kelo’s house was a well-maintained and private home. This is considered one of the worst Supreme Court decisions in history [1]. The Takings Clause in the Fifth Amendment that refers to eminent domain says: “nor shall private property be taken for public use, without just compensation” [2]. Long-standing precedent exists that designates serving a public purpose as a valid public use for the taking of private property by the government and transferring it to other private owners. While the Kelo case resulted in the expansion of the government’s eminent domain powers and the upholding of the vague serving a public purpose doctrine, it is still a source of extreme contention. 

Despite existing precedent and the difficulty of administering a public use test, the courts should return to the original meaning of the Public Use clause in the Fifth Amendment and not the broad public purpose doctrine since the latter interpretation results in no clear limit on what constitutes a valid public use.

The original meaning of the Public Use clause, as meant by the framers and described by Justice Clarence Thomas, allows the government to take property under the Takings Clause not for “public necessity but instead for public use” [3]. Specifically, the definition of the word “use” means that the government or its citizens must “actually employ” the taken property [4]. Therefore, the term public use is clear and specifically chosen by the framers to be distinct from providing for the “general welfare” which involves the government’s concern for the health and well-being of its citizens [5]. Adopting the broad definition of public use as public purpose results in the effective erasure of the public use limitation in the Takings Clause since virtually any taking of property can be justified under the pretense of serving some public purpose [6]. There is no longer a “coherent principle [that] limits what could constitute a valid public use [7]” since almost “any lawful use of real private property can… generate some incidental benefit to the public” [8]. For example, if one transfers an area of land containing many individuals’ homes to a private developer such that the private developer uses the land for his own personal benefit, but plants beautiful gardens outside, this can be thought to provide the public benefit of aesthetic pleasure [9]. Through this process, any taking of property can be interpreted in such a way to provide the public with some type of benefit. Therefore, we should return to the original meaning of the public use, as defined by whether the public or the government actively employs the property, since it provides a clear limit to what constitutes a public use. 

Critics of the aforementioned argument would say that regardless of personal beliefs about the interpretation of the Takings Clause, justices are bound by the precedent of public purpose such that they must vote in favor of the city. To begin, strong precedents have been established where the Court “long ago rejected any literal requirement that condemned property be put into use for the general public [10]” such that “it embraced the broader and more natural interpretation of public use as public purpose” [11]. Therefore, despite any personal beliefs, critics would argue for the importance of following stare decisis, defined as the legal principle of following existing precedents, in order to maintain stability in our common law system. Justice Thomas would respond to this by emphasizing that even if there is an established precedent, if the underlying interpretation is incorrect it is the Court’s duty to ameliorate it [12]. Particularly noting the shortcomings of the two heavily cited cases in the majority opinion, he says “the weakness of…Berman and Midkiff, fatally undermines the doctrinal foundations of the Court’s decision” such that it must be eliminated in order to return to a principled application of the Takings Clause [13]. 

However, critics would then argue that even if there were no established precedent equating public use to public purpose, the narrow public use doctrine Thomas wants to return to is difficult to administer. This “use by the public” test is difficult to administer in that it is hard to establish “what proportion of the public need [to] have access to the property? At what price?” [14]. To this, Thomas would push back and argue that the “Court is wrong to criticize the “actual use” test as “difficult to administer” [15]. While any test set up by the court will be difficult in determining the exactness of its scope, the public purpose test supported by the majority opinion holders is no test at all in that it is completely subjective and basically allows property to be taken if it confers any type of social benefit. The actual use test lays ground rules for determining whether a property is employed by either the government or the public which is simpler than determining if a property confers exclusively private benefit such that it “is far easier to analyze whether the government owns, or the public has a legal right to use the taken property than to ask whether the taking has a purely private purpose” [16]. The test proposed by the majority opinion holders is “significantly harder to pinpoint as private and public benefits can blur into one” as shown by the example of taking private property and planting a garden that provides the public benefit of aesthetic pleasure [17]. Therefore, despite critics arguing that the actual use test is increasingly difficult to administer, this test at least provides guidelines as to what constitutes a valid public use, whereas the public purpose doctrine does not.  

Overall, the courts should return to the original meaning of the Public Use Clause as defined by the government or its citizens actively employing a property because the currently utilized public purpose doctrine does not provide a coherent limit on what constitutes a public use. Even if the “actual use” test is difficult to administer, it still provides guidelines as to what a valid public use is. This dilemma stems far further than the textual implications of wrongly interpreting the Takings Clause. Interpreting eminent domain in the way that was implied by the Kelo case such that the government can take a well-maintained home and for the purpose of economic rejuvenation give the land to private developers essentially creates tyrannical power. While the government does not frequently exercise the power to take property in areas they think are not as economically developed as they could be, the fact that they have this power in the first place was not intended by the framers when they wrote the Bill of Rights and can easily slip into governmental overreach.

References

[1] Somin, I. (2015). The Grasping Hand: “Kelo v. City of New London” and the Limits of Eminent Domain. Cato.org. Retrieved from https://www.cato.org/commentary/grasping-hand-kelo-v-city-new-london-limits-eminent-domain

[2] U.S. Const. amend. V

[3] Kelo et al. v. City of New London et al, 545 U.S. 469, 505 (2004)

[4] Ibid. at 509.

[5] Ibid.

[6] Treanor, William. 2010. "The Original Understanding Of The Takings Clause". Scholarship.Law.Georgetown.Edu. https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1001&context=gelpi_papers.

[7] Kelo et al. v. City of New London et al, 545 U.S. 469, 520 (2004)

[8] Ibid. at 509.

[9] While a reasonable judge may realize that this is a stretch, the point that is being made is that there really is no coherent limiting factor to the interpretation that a taking must provide some sort of public benefit as almost anything can successfully be argued to provide a public benefit.

[10] Ibid. at 479.

[11] Ibid. at 479.

[12] There is no correct answer to this dilemma. The Supreme Court is not strictly bounded by precedent as they can and often do overturn them, but there is an expectation of general deference to precedent. The extent to which a justice strictly adheres to precedent in their rulings depends on their own interpretation of what the Supreme Court’s function is.

[13] Ibid. at 515.

[14] Ibid. at 479.

[15] Ibid. at 521.

[16] Ibid. at 521.

[17] Ibid. at 521.