July 20, 2005,
In his piece “Property Rights & Wrongs,” Jonathan Adler defended the U.S. Supreme Court’s 5-4 Kelo decision, which held that cities may use eminent domain to take private houses and give them to private corporations for “economic development.” Whereas the Kelo majority basically acknowledged that its approach was at odds with the original understanding of the Constitution, Adler mysteriously claimed that “the originalist case for a robust, judicially enforceable ‘public use’ limitation is fairly weak.”
We should start, as Adler does not, with the Constitution itself. The Fifth Amendment reads “nor shall private property be taken for public use, without just compensation.” This implicitly forbids the government from taking your property for merely private uses; if it did not, the “public use” clause would be meaningless and empty, contradicting chief justice John Marshall’s warning over 200 years ago that no clause of the Constitution is intended to be meaningless.
Although Adler expresses doubt that the word “public” means anything at all, he then admits that “naked property transfers from A to B” are not permissible under the Fifth Amendment. But if we followed his argument and excised “public use” from the takings clause, why would that be so? Ignoring the constitutional text or giving plenary power to legislatures to be the judge of their own constitutional powers would leave many plots of land vulnerable to exactly the abuse that Adler describes.
Adler then attempts to muddy the waters by suggesting that we cannot read “public use” to mean what it says because that would endanger the government’s ability to take land for military bases and prisons. Nonsense. As Justice Thomas’s thorough dissent points out, if the government owns and uses the land, there is no doubt that it is a proper “public use.” Government uses are necessarily public ones: There is no such thing as a private government. The constitutional problem arises when a government takes land not to use for itself but to hand it off to a private party without ensuring that the public retains the right to use it.
In other words, if the government uses eminent domain to build a restricted-access government postal facility, the use is public because the post office belongs to us, the public. But if the government takes my home because FedEx wants to turn it in to a warehouse, it violates the Constitution and the basic idea of private property.
Adler then briefly alludes to the use of eminent domain by states to build private roads and to flood lands for privately owned mills. Strictly speaking, many of these examples have little to do with the Fifth Amendment, since that amendment did not apply to state governments until the second half of the 19th century. And even so, Justice Thomas’s dissent discusses evidence that early grist mills were required by law to be open to the public, as were many private roads.
To be sure, there have been some unconstitutional government abuses of the eminent domain power throughout history, and courts have not always been wise enough or brave enough to uphold the Constitution when it became unpopular. The same is true today. But it would be a mistake to let defiance of the Constitution become legitimate merely by repetition, or to let it obscure the original meaning of the “public use” clause.
Indeed, it may be telling that Justice Stevens’s opinion in Kelo did not even try to meet the historical evidence marshaled by Justice Thomas (nor, for that matter, does Adler). Stevens instead relied upon a string of more modern Supreme Court precedents that had replaced the word “use” with “purpose,” and argued that it would be impractical to continue to enforce the original meaning of the Constitution given the “diverse and always evolving needs of society.”
Finally, Adler suggests that enforcing the Constitution’s public use clause might make it harder for governments to sell off the public lands, and “would turn the takings clause into a ratchet.” But the constitutional requirement of takings only for public use does not impose limits on the government’s ability to sell land once it has been put to public use; the public use clause prevents taking property where there is no public use. Kelo was not about whether the city could sell publicly owned land; it was about whether it could transfer land from one private owner to another because an office building would pay more taxes than Susette Kelo.
It has become fashionable among some scholars to ignore provisions of the Constitution because they are inconvenient, or hard to understand, or unpopular. Adler is right that eminent domain abuse is “offensive,” but he is wrong to think that the Constitution permits these offensive abuses. As the Framers of the Fifth Amendment, as well as four justices of the Supreme Court and the outraged public realized, the Constitution must be taken to mean what it says, not tossed off because city bureaucrats and academics find it a nuisance.
Jonathan H. Adler responds: I admire the efforts of my good friend Scott Bullock on behalf of aggrieved landowners and his devotion to libertarian principle. Alas, the Constitution does not adopt his (or my) worldview, and not every wrong against property rights can be vindicated in federal court.
Starting with the text, the Fifth Amendment does not say property may be taken “only” for public use. The Framers could have written so explicit a limitation in the text; they did not, as Bullock acknowledges by arguing the limitation is “implicit.” The plainest reading of the language is that it seeks to distinguish when compensation is and is not due. When government takes property to benefit the public, compensation must be paid. When it takes property for some other reason (taxation, civil sanction, etc.), no compensation is required (although other constitutional provisions prevent the taking of property without due process).
There is not much direct historical evidence as to the original meaning of “public use,” but what there is supports the above reading of the takings clause, rather than the one offered by Bullock. The writers and thinkers who influenced the Founders, such as John Locke, certainly sought to protect property rights from the government. This protection was to come in two forms: First, any taking had to be “consensual” that is, it had to be approved by the people’s representatives in the legislature rather than decreed by some executive authority. Second, any taking for public use had to be compensated. The takings clause is designed to address the latter concern to ensure that the “public” paid private individuals for their land.
I am aware of no contemporaneous evidence and Bullock cites none in either his letter or his brief before the Supreme Court in Kelo that the clause was intended as a judicially enforceable limit on the purposes for which property could be taken. The best Justice Thomas and various amici can offer on this score is some 18th-century dictionaries and general exhortations about the importance of property. This is all well and good, but it does not establish “public use” as a judicially enforceable limit on government power. Blackstone held property rights to be inviolable, as did many of the founding generation. Yet the Constitution clearly allows for the use of eminent domain, rejecting the Blackstonian view. Perhaps naively, the Founders believed that when the legislature approved the taking of property (pursuant to a delegated power, of course), it would constitute a “public use.” Here, as elsewhere, the Constitution we actually have is not nearly as immune to rent-seeking and special-interest pleading as we might like, but it is the Constitution we have.
Mr. Bullock is correct that many academics, attorney, litigators, and even justices like to disregard the text and original meaning of the Constitution when it is inconvenient or obscure. I will not defend the justices in the Kelo majority on this score as they did not seek to rest their opinion on originalist grounds. Alas, there are others, including my friend Bullock, who seem willing to read their own ideological preferences into ambiguous constitutional text. I used to share Mr. Bullock’s view of “public use” under the takings clause, but the more I have looked into the historical materials, the more difficult I have found it to maintain. I believe the burden is upon those who would seek to strike down state legislative action in federal court, and that burden has not been met.
The remedy for most eminent domain abuse, like that for many of the petty tyrannies inflicted by state and local governments, is through the political process, not federal courts. I wish the Institute for Justice and its affiliated Castle Coalition great success in their efforts on this front. But when it comes to Kelo, I do not believe the Constitution was on their side.