Public Use

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The expansive interpretation of public use in eminent domain cases may have reached its outer limit in Kelo v. City of New London .21 Footnote
545 U.S. 469 (2005) . There, a five-justice majority upheld as a public use the private-to-private transfer of land for purposes of economic development, at least in the context of a well-considered, areawide redevelopment plan adopted by a municipality to invigorate a depressed economy. The Court saw no principled way to distinguish economic development from the economic purposes endorsed in Berman and Midkiff , and stressed the importance of judicial deference to the legislative judgment as to public needs. At the same time, the Court cautioned that private-to-private condemnations of individual properties, not part of an “integrated development plan . . . raise a suspicion that a private purpose [is] afoot.” 22 Footnote
545 U.S. at 487 . A vigorous four-justice dissent countered that localities will always be able to manufacture a plausible public purpose, so that the majority opinion leaves the vast majority of private parcels subject to condemnation when a higher-valued use is desired.23 Footnote
Written by Justice O’Connor, and joined by Justices Scalia and Thomas, and Chief Justice Rehnquist. Backing off from the Court's past endorsements in Berman and Midkiff of a public use/police power equation, the dissenters referred to the “errant language” of these decisions, which was “unnecessary” to their holdings.24 Footnote
545 U.S. at 501 .

Footnotes 1 Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158–59 (1896) ; Cole v. La Grange, 113 U.S. 1, 6 (1885) . 2 “It is well established that in considering the application of the Fourteenth Amendment to cases of expropriation of private property, the question what is a public use is a judicial one.” City of Cincinnati v. Vester, 281 U.S. 439, 444 (1930) . 3 Kelo v. City of New London, 545 U.S. 469, 482 (2005) . The taking need only be “rationally related to a conceivable public purpose.” Id. at 490 (Justice Kennedy concurring). 4 Berman v. Parker, 348 U.S. 26, 32 (1954) (federal eminent domain power in District of Columbia). 5 Green v. Frazier, 253 U.S. 233, 240 (1920) ; City of Cincinnati v. Vester, 281 U.S. 439, 446 (1930) . See also Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984) (appeals court erred in applying more stringent standard to action of state legislature). 6 Hairston v. Danville & Western Ry., 208 U.S. 598, 607 (1908) . An act of condemnation was voided as not for a public use in Missouri Pac. Ry. v. Nebraska, 164 U.S. 403 (1896) , but the Court read the state court opinion as acknowledging this fact, thus not bringing it within the literal content of this statement. 7 United States ex rel. TVA v. Welch, 327 U.S. 546, 551–52 (1946) . Justices Reed and Frankfurter and Chief Justice Stone disagreed with this view. Id. at 555, 557 (concurring). 8 327 U.S. at 552 . 9 So it seems to have been considered in Berman v. Parker, 348 U.S. 26, 32 (1954) . 10 Rindge Co. v. Los Angeles County, 262 U.S. 700, 709 (1923) ; Bragg v. Weaver, 251 U.S. 57, 58 (1919) ; Berman v. Parker, 348 U.S. 26, 33 (1954) . “When the legislature’s purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings . . . are not to be carried out in federal courts.” Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 242–43 (1984) . 11 Clark v. Nash, 198 U.S. 361 (1905) ; Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30, 32 (1916) . 12 Berman v. Parker, 348 U.S. 26, 32, 33 (1954) . 13 Brown v. Legal Found. of Washington, 538 U.S. 216, 232 (2003) . But see id. at 242 n.2 (Justice Scalia dissenting). 14 E.g., Kohl v. United States, 91 U.S. 367 (1876) (public buildings); Chicago M. & S.P. Ry. v. City of Minneapolis, 232 U.S. 430 (1914) (canal); Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685 (1897) (condemnation of privately owned water supply system formerly furnishing water to municipality under contract); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30 (1916) (land, water, and water rights condemned for production of electric power by public utility); Dohany v. Rogers, 281 U.S. 362 (1930) (land taken for purpose of exchange with a railroad company for a portion of its right-of-way required for widening a highway); Delaware, L. & W.R.R. v. Town of Morristown, 276 U.S. 182 (1928) (establishment by a municipality of a public hack stand upon driveway maintained by railroad upon its own terminal grounds to afford ingress and egress to its patrons); Clark v. Nash, 198 U.S. 361 (1905) (right-of-way across neighbor’s land to enlarge irrigation ditch for water without which land would remain valueless); Strickley v. Highland Boy Mining Co., 200 U.S. 527 (1906) (right of way across a placer mining claim for aerial bucket line). In Missouri Pacific Ry. v. Nebraska, 164 U.S. 403 (1896) , however, the Court held that it was an invalid use when a State attempted to compel, on payment of compensation, a railroad, which had permitted the erection of two grain elevators by private citizens on its right-of-way, to grant upon like terms a location to another group of farmers to erect a third grain elevator for their own benefit. 15 E.g., Shoemaker v. United States, 147 U.S. 282 (1893) (establishment of public park in District of Columbia); Rindge Co. v. Los Angeles County, 262 U.S. 700 (1923) (scenic highway); Brown v. United States, 263 U.S. 78 (1923) (condemnation of property near town flooded by establishment of reservoir in order to locate a new townsite, even though there might be some surplus lots to be sold); United States v. Gettysburg Electric Ry., 160 U.S. 668 (1896) , and Roe v. Kansas ex rel. Smith, 278 U.S. 191 (1929) (historic sites). When time is deemed to be of the essence, Congress takes land directly by statute, authorizing procedures by which owners of appropriated land may obtain just compensation. See, e.g., Pub. L. No. 90-545, § 3, 82 Stat. 931 (1968), 16 U.S.C. § 79 (c) (taking land for creation of Redwood National Park); Pub. L. No. 93-444, 88 Stat. 1304 (1974) (taking lands for addition to Piscataway Park, Maryland); Pub. L. No. 100-647, § 10002 (1988) (taking lands for addition to Manassas National Battlefield Park). 16 348 U.S. 26, 32–33 (1954) (citations omitted). Rejecting the argument that the project was illegal because it involved the turning over of condemned property to private associations for redevelopment, the Court said: “Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established. The public end may be as well or better served through an agency of private enterprise than through a department of government—or so the Congress might conclude.” Id. at 33–34 (citations omitted). 17 Most recently, the Court equated public use with “public purpose.” Kelo v. City of New London, 545 U.S. 469, 480 (2005) . 18 467 U.S. 229, 243 (1984) . 19 467 U.S. at 243 . 20 467 U.S. at 240 . See also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1014 (1984) (required data disclosure by pesticide registrants, primarily for benefit of later registrants, has a “conceivable public character” ). 21 545 U.S. 469 (2005) . 22 545 U.S. at 487 . 23 Written by Justice O’Connor, and joined by Justices Scalia and Thomas, and Chief Justice Rehnquist. 24 545 U.S. at 501 .

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