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.
Explicit in the Just Compensation Clause is the requirement that the taking of private property be for a public use; one cannot be deprived of his property for any reason other than a public use, even with compensation.610 The question whether a particular intended use is a public use is clearly a judicial one,611 but the Court has always insisted on a high degree of judicial deference to the legislative determination.612 “The role of the judiciary in determining whether that power is being exercised for a public use is an extremely narrow one.”613 When it is state action being challenged under the Fourteenth Amendment, there is the additional factor of the Court’s willingness to defer to the highest court of the state in resolving such an issue.614 As early as 1908, the Court was obligated to admit that, notwithstanding its retention of the power of judicial review, “[n]o case is recalled where this court has condemned as a violation of the Fourteenth Amendment a taking upheld by the state court as a taking for public uses . . . .”615 However, in a 1946 case involving federal eminent domain power, the Court cast considerable doubt upon the power of courts to review the issue of public use. “We think that it is the function of Congress to decide what type of taking is for a public use and that the agency authorized to do the taking may do so to the full extent of its statutory authority.”616 There is some suggestion that “the scope of the judicial power to determine what is a ‘public use’” may be different as between Fifth and Fourteenth Amendment cases, with greater power in the latter type of cases than in the former,617 but it may well be that the case simply stands for the necessity for great judicial restraint.618 Once it is admitted or determined that the taking is for a public use and is within the granted authority, the necessity or expediency of the particular taking is exclusively in the legislature or the body to which the legislature has delegated the decision, and is not subject to judicial review.619
At an earlier time, the factor of judicial review would have been vastly more important than it is now, inasmuch as the prevailing judicial view was that the term “public use” was synonymous with “use by the public” and that if there was no duty upon the taker to permit the public as of right to use or enjoy the property taken, the taking was invalid. But this view was rejected some time ago.620 The modern conception of public use equates it with the police power in the furtherance of the public interest. No definition of the reach or limits of the power is possible, the Court has said, because such “definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. . . . Public safety, public health, morality, peace and quiet, law and order— these are some of the . . . traditional application[s] of the police power . . . .” Effectuation of these matters being within the authority of the legislature, the power to achieve them through the exercise of eminent domain is established. “For the power of eminent domain is merely the means to the end.”621 Subsequently, the Court put forward an added indicium of “public use”: whether the government purpose could be validly achieved by tax or user fee.622 Traditionally, eminent domain has been used to facilitate transportation, the supplying of water, and the like,623 but the use of the power to establish public parks, to preserve places of historic interest, and to promote beautification has substantial precedent.624
The Supreme Court has also approved generally the widespread use of the power of eminent domain by federal and state governments in conjunction with private companies to facilitate urban renewal, destruction of slums, erection of low-cost housing in place of deteriorated housing, and the promotion of aesthetic values as well as economic ones. In Berman v. Parker,625 a unanimous Court observed: “The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.” For “public use,” then, it may well be that “public interest” or “public welfare” is the more correct phrase.626 Berman was applied in Hawaii Housing Auth. v. Midkiff,627 upholding the Hawaii Land Reform Act as a “rational” effort to “correct deficiencies in the market determined by the state legislature to be attributable to land oligopoly.” Direct transfer of land from lessors to lessees was permissible, the Court held, there being no requirement “that government possess and use property at some point during a taking.”628 “The ‘public use’ requirement is . . . coterminous with the scope of a sovereign’s police powers,” the Court concluded.629
The expansive interpretation of public use in eminent domain cases may have reached its outer limit in Kelo v. City of New London.630 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.”631 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.632 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.633
610 Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158–59 (1896); Cole v. La Grange, 113 U.S. 1, 6 (1885).
611 “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).
612 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).
613 Berman v. Parker, 348 U.S. 26, 32 (1954) (federal eminent domain power in District of Columbia).
614 Green v. Frazier, 253 U.S. 283, 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).
615 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.
616 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).
617 327 U.S. at 552.
618 So it seems to have been considered in Berman v. Parker, 348 U.S. 26, 32 (1954).
619 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).
620 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).
621 Berman v. Parker, 348 U.S. 26, 32, 33 (1954).
622 Brown v. Legal Found. of Washington, 538 U.S. 216, 232 (2003). But see id. at 242 n.2 (Justice Scalia dissenting).
623 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.
624 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. 90–545, § 3, 82 Stat. 931 (1968), 16 U.S.C. § 79(c) (taking land for creation of Redwood National Park); Pub. L. 93–444, 88 Stat. 1304 (1974) (taking lands for addition to Piscataway Park, Maryland); Pub. L. 100–647, § 10002 (1988) (taking lands for addition to Manassas National Battlefield Park).
625 348 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).
626 Most recently, the Court equated public use with “public purpose.” Kelo v. City of New London, 545 U.S. 469, 480 (2005).
627 467 U.S. 229, 243 (1984).
628 467 U.S. at 243.
629 467 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”).
630 545 U.S. 469 (2005).
631 545 U.S. at 487.
632 Written by Justice O’Connor, and joined by Justices Scalia and Thomas, and Chief Justice Rehnquist.
633 545 U.S. at 501.