U.S. Supreme Court
Thomas P. Cotrel, Attorney at Law
Opinion
Justice O'Connor Dissent
Justice Thomas Dissent
1 (Slip
Opinion) OCTOBER TERM, 2004
Syllabus
NOTE: Where it is feasible, a syllabus
(headnote) will be released, as is being done in connection with this case, at
the time the opinion is issued. The syllabus constitutes no part of the opinion
of the Court but has been prepared by the Reporter of Decisions for the
convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME
COURT OF THE UNITED STATES
Syllabus
KELO ET AL. v. CITY OF NEW LONDON ET AL.
CERTIORARI TO THE SUPREME COURT OF CONNECTICUT
No. 04–108. Argued February 22, 2005—Decided June 23, 2005
After approving
an integrated development plan designed to revitalize its ailing economy,
respondent city, through its development agent, purchased most of the property
earmarked for the project from willing sellers, but initiated condemnation
proceedings when petitioners, the owners of the rest of the property, refused
to sell. Petitioners brought this state-court action claiming, inter alia, that
the taking of their properties would violate the “public use” restriction in
the Fifth Amendment’s Takings Clause. The trial court granted a permanent
restraining order prohibiting the taking of the some of the properties, but
denying relief as to others. Relying on cases such as Hawaii Housing Authority v. Midkiff, 467 U. S. 229, and Berman v. Parker, 348 U. S. 26, the Connecticut Supreme Court affirmed in part and reversed
in part, upholding all of the proposed takings.
Held: The city’s
proposed disposition of petitioners’ property qualifies as a “public use”
within the meaning of the Takings Clause. Pp. 6–20.
(a) Though the city could not take
petitioners’ land simply to confer a private benefit on a particular private
party, see, e.g.,
Midkiff, 467
U. S., at 245, the takings at issue here would be executed pursuant to a
carefully considered development plan, which was not adopted “to benefit a
particular class of identifiable individuals,” ibid. Moreover, while the city is not planning to open the
condemned land—at least not in its entirety—to use by the general public, this
“Court long ago rejected any literal requirement that condemned property be put
into use for the . . . public.” Id., at 244. Rather, it has embraced the broader and more
natural interpretation of public use as “public purpose.” See, e.g., Fallbrook
Irrigation Dist. v. Bradley, 164 U. S. 112, 158–164. Without exception, the Court has defined
that concept broadly, reflecting its longstanding policy of deference to
legislative judgments as to what public needs justify the use of the takings
2 KELO v. NEW LONDON
Syllabus
power. Berman, 348 U. S. 26; Midkiff, 467 U. S. 229; Ruckelshaus v. Monsanto Co., 467
U. S. 986. Pp. 6–13.
(b) The city’s determination that
the area at issue was sufficiently distressed to justify a program of economic
rejuvenation is entitled to deference. The city has carefully formulated a
development plan that it believes will provide appreciable benefits to the
community, including, but not limited to, new jobs and increased tax revenue.
As with other exercises in urban planning and development, the city is trying
to coordinate a variety of commercial, residential, and recreational land uses,
with the hope that they will form a whole greater than the sum of its parts. To
effectuate this plan, the city has invoked a state statute that specifically
authorizes the use of eminent domain to promote economic development. Given the
plan’s comprehensive character, the thorough deliberation that preceded its adoption,
and the limited scope of this Court’s review in such cases, it is appropriate
here, as it was in Berman, to resolve the challenges of the individual owners,
not on a piecemeal basis, but rather in light of the entire plan. Because that
plan unquestionably serves a public purpose, the takings challenged here
satisfy the Fifth Amendment. P. 13.
(c) Petitioners’ proposal that the
Court adopt a new bright-line rule that economic development does not qualify
as a public use is supported by neither precedent nor logic. Promoting
economic development is a traditional and long accepted governmental function,
and there is no principled way of distinguishing it from the other public
purposes the Court has recognized. See, e.g., Berman, 348 U. S., at
24. Also rejected is petitioners’ argument
that for takings of this kind the Court should require a “reasonable certainty”
that the expected public benefits will actually accrue. Such a rule would
represent an even greater departure from the Court’s precedent. E.g., Midkiff, 467
U. S., at 242. The disadvantages of a heightened
form of review are especially pronounced in this type of case, where orderly
implementation of a comprehensive plan requires all interested parties’ legal
rights to be established before new construction can commence. The Court
declines to second-guess the wisdom of the means the city has selected to
effectuate its plan. Berman, 348 U. S., at 26. Pp. 13–20.
268 Conn. 1, 843 A.
2d 500, affirmed.
STEVENS, J.,
delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ.,
joined. KENNEDY, J., filed a concurring opinion. O’CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA
and THOMAS, JJ., joined. THOMAS, J., filed a dissenting opinion.
_________________
_________________ 1 Cite as: 545 U. S. ____ (2005)
Opinion of the Court
NOTICE:
This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to notify
the Reporter of Decisions, Supreme Court of the United States, Washington, D.
C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 04–108
SUSETTE KELO, ET AL., PETITIONERS v. CITY OF NEW
LONDON,
CONNECTICUT, ET AL.
ON WRIT OF
CERTIORARI TO THE SUPREME COURT OF CONNECTICUT
[June 23, 2005]
JUSTICE STEVENS delivered the
opinion of the Court.
In 2000, the city
of New
London
approved a development plan that, in the words of the Supreme Court of
Connecticut, was “projected to create in excess of 1,000 jobs, to increase tax
and other revenues, and to revitalize an economically distressed city,
including its downtown and waterfront areas.” 268 Conn. 1, 5, 843 A. 2d
500, 507 (2004). In assembling the land needed for this project, the city’s
development agent has purchased property from willing sellers and proposes to
use the power of eminent domain to acquire the remainder of the property from
unwilling owners in exchange for just compensation. The question presented is
whether the city’s proposed disposition of this property qualifies as a
“public use” within the meaning of the Takings Clause of the Fifth Amendment to
the Constitution.1
——————
1“[N]or shall
private property be taken for public use, without just compensation.” U. S. Const., Amdt. 5.
That Clause is made applicable to the States by the Fourteenth Amendment. See Chicago,
B. & Q. R. Co. v.
Chicago,
166 U. S. 226 (1897).
2 KELO v. NEW LONDON
Opinion of the Court
I The city of New London (hereinafter
City) sits at the junction of the Thames River and the Long
Island Sound in southeastern Connecticut. Decades of economic decline led a state
agency in 1990 to designate the City a “distressed municipality.” In 1996, the
Federal Government closed the Naval Undersea Warfare Center, which had been
located in the Fort Trumbull area of the City
and had employed over 1,500 people. In 1998, the City’s unemployment rate was
nearly double that of the State, and its population of just under 24,000
residents was at its lowest since 1920. These conditions prompted state and
local officials to target New London, and particularly its Fort Trumbull area, for
economic revitalization. To this end, respondentNew London Development
Corporation (NLDC), a private nonprofit entity established some years earlier
to assist the City in planning economic development, was reactivated. In
January 1998, the State authorized a $5.35million bond issue to support the
NLDC’s planning activities and a $10 million bond issue toward the creation of
a Fort Trumbull State Park. In February,
the pharmaceutical company Pfizer Inc. announced that it would build a $300
million research facility on a site immediately adjacent to Fort Trumbull; local planners
hoped that Pfizer would draw new business to the area, thereby serving as a
catalyst to the area’s rejuvenation. After receiving initial approval from the
city council, the NLDC continued its planning activities and held a series of
neighborhood meetings to educate the public about the process. In May,the city
council authorized the NLDC to formally submitits plans to the relevant state
agencies for review.2 Upon
——————
2Various state agencies studied the project’s economic,
environmental, and social ramifications. As part of this process, a team of
consultants evaluated six alternative development proposals for the
Cite
as: 545 U. S. ____ (2005) 3
Opinion of the Court
obtaining state-level approval, the NLDC
finalized an integrated development plan focused on 90 acres of the Fort Trumbull area.
The Fort Trumbull area is situated
on a peninsula thatjuts into the Thames River. The area
comprises approximately 115 privately owned properties, as well as the 32
acres of land formerly occupied by the naval facility (Trumbull State Park now
occupies 18 of those 32 acres). The development plan encompasses seven parcels.
Parcel 1 is designated for a waterfront conference hotel at the center of a
“small urban village” that will include restaurants and shopping. This parcel
will also have marinas for both recreational and commercial uses. A pedestrian
“riverwalk” will originate here and continue down the coast, connecting the
waterfront areas of the development. Parcel 2 will be the site of approximately
80 new residences organized into an urban neighborhood and linked by public
walkway to the remainder of the development, including the state park. This
parcel also includes spacereserved for a new U. S. Coast Guard Museum. Parcel
3, which is located immediately north of the Pfizer facility, will contain at
least 90,000 square feet of research and development office space. Parcel 4A is
a 2.4-acre site that will be used either to support the adjacent state park, by
providing parking or retail services for visitors, or to support the nearby
marina. Parcel 4B will include a renovated marina, as well as the final
stretch of the riverwalk. Parcels 5, 6, and 7 will provide land for office and
retail space, parking, and water-dependent commercial uses. 1 App. 109–113.
The NLDC intended
the development plan to capitalize
——————
area, which varied in extensiveness and emphasis. The Office of Planning and
Management, one of the primary state agencies undertaking the review, made
findings that the project was consistent with relevant state and municipal
development policies. See 1 App. 89–95.
4
KELO v.
NEW LONDON
Opinion of the Court
on the arrival of the Pfizer facility and
the new commerceit was expected to attract. In addition to creating jobs,generating
tax revenue, and helping to “build momentum for the revitalization of downtown New London,” id., at 92, the plan
was also designed to make the City more attractive and to create leisure and
recreational opportunities on the waterfront and in the park.
The city council
approved the plan in January 2000, and designated the NLDC as its development
agent in charge of implementation. See Conn. Gen. Stat. §8–188 (2005). The city
council also authorized the NLDC to purchase property or to acquire property by
exercising eminent domain in the City’s name. §8–193. The NLDC successfully
negotiated the purchase of most of the real estate in the 90-acre area, but its
negotiations with petitionersfailed. As a consequence, in November 2000, the
NLDC initiated the condemnation proceedings that gave rise to this case.3
II Petitioner
Susette Kelo has lived in the Fort Trumbull area since 1997. She has made
extensive improvements to her house, which she prizes for its water view.
Petitioner Wilhelmina Dery was born in her Fort Trumbull house in 1918 and has lived there
her entire life. Her husband Charles (also a petitioner) has lived in the house
since they married some 60 years ago. In all, the nine petitioners own 15
properties in Fort Trumbull—4 in parcel 3 of
the development plan and 11 in parcel 4A. Ten of the parcels are occupied by
the owner or a family member; the other five are held as investment properties.
There is no allegation that any of these properties is blighted or otherwise
in poor condition; rather, they were condemned
—————— 3In the remainder
of the opinion we will differentiate between the City and the NLDC only where
necessary.
Cite as: 545 U. S. ____ (2005) 5
Opinion of the Court
only because they happen to be located in
the development area.
In December 2000,
petitioners brought this action in the New London Superior Court. They claimed,
among other things, that the taking of their properties would violate the
“public use” restriction in the Fifth Amendment. After a 7-day bench trial, the
Superior Court granted a permanent restraining order prohibiting the taking of
the properties located in parcel 4A (park or marina support). It, however,
denied petitioners relief as to the properties located in parcel 3 (office
space). 2 App. to Pet. for Cert.343–350.4
After the
Superior Court ruled, both sides took appeals to the Supreme Court of
Connecticut. That court held, over a dissent, that all of the City’s proposed
takings were valid. It began by upholding the lower court’s determination that
the takings were authorized by chapter 132, the State’s municipal development
statute. See Conn. Gen. Stat. §8–186 et seq. (2005). That
statute expresses a legislative determination that the taking of land, even
developed land, as part of an economic development project is a “public use”
and in the “public interest.” 268 Conn., at 18–28, 843 A. 2d, at 515–521.
Next, relying on cases such as Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984), and Berman v. Parker, 348 U. S. 26 (1954), the
court held that such economic development qualified as a valid public use under
both the Federal and State Constitutions. 268 Conn., at 40, 843 A.
2d, at 527.
—————— 4While this
litigation was pending before the Superior Court, the NLDC announced that it
would lease some of the parcels to private developers in exchange for their
agreement to develop the land according to the terms of the development plan.
Specifically, the NLDC was negotiating a 99-year ground lease with Corcoran
Jennison, a developer selected from a group of applicants. The negotiations
contemplated a nominal rent of $1 per year, but no agreement had yet been
signed. See 268 Conn. 1, 9, 61, 843 A.
2d 500, 509–510, 540 (2004).
6 KELO v. NEW LONDON Opinion of the
Court
Finally, adhering
to its precedents, the court went on todetermine, first, whether the takings of
the particularproperties at issue were “reasonably necessary” to achieving the
City’s intended public use, id., at 82, 843 A. 2d, at 552–553, and,
second, whether the takings were for “reasonably foreseeable needs,” id., at 93, 843 A.
2d, at 558– 559. The court upheld the trial court’s factual findings asto
parcel 3, but reversed the trial court as to parcel 4A, agreeing with the City
that the intended use of this land was sufficiently definite and had been given
“reasonable attention” during the planning process. Id., at 120–121, 843
A. 2d, at 574.
The three
dissenting justices would have imposed a“heightened” standard of judicial
review for takings justified by economic development. Although they agreed
thatthe plan was intended to serve a valid public use, theywould have found all
the takings unconstitutional because the City had failed to adduce “clear and
convincing evidence” that the economic benefits of the plan would in fact come
to pass. Id., at 144, 146,
843 A. 2d, at 587, 588 (Zarella, J., joined by Sullivan, C. J., and Katz, J.,
concurring in part and dissenting in part).
We granted
certiorari to determine whether a city’s decision to take property for the
purpose of economic development satisfies the “public use” requirement of the
Fifth Amendment. 542 U.
S.
___ (2004).
III Two polar propositions are perfectly clear. On the one
hand, it has long been accepted that the sovereign may not take the property of
A for the sole purpose of transferring it to another private
party B, even though A is
paid just compensation. On the other hand, it is equally clear that a State may
transfer property from one private party to another if future “use by the
public” is the purpose of the taking; the condemnation of land for a railroad
with com
Cite as: 545 U. S.
____ (2005) 7
Opinion of the Court
mon-carrier duties is a familiar example.
Neither of these propositions, however, determines the disposition of this
case.
As for the first
proposition, the City would no doubt be forbidden from taking petitioners’ land
for the purpose of conferring a private benefit on a particular private party.
See Midkiff,
467
U. S., at 245 (“A purely private taking could not withstand the scrutiny of the
public use requirement; it would serve no legitimate purpose of government and
would thus be void”); Missouri
Pacific R. Co. v.
Nebraska,
164
U. S. 403 (1896).5 Nor would the City be allowed to take property
under the mere pretext of a public purpose, when its actual purpose was to
bestow a private benefit. The takings before us, however, would be executed
pursuant to a “carefully considered” development plan. 268 Conn., at 54, 843 A.
2d, at 536. The trial judgeand all the members of the Supreme Court of
Connecticut agreed that there was no evidence of an illegitimate purpose in
this case.6 Therefore, as was true of the statute
—————— 5See also Calder v. Bull, 3 Dall. 386, 388
(1798) (“An ACT
of
the Legislature (for I cannot call it a law) contrary to the great first
principles of the social compact, cannot be considered a rightful exercise of
legislative authority. . . . A few instances will suffice to explain what I
mean. . . [A] law that takes property from A. and gives it to B: It is against
all reason and justice, for a people to entrust a Legislature with SUCH powers; and,
therefore, it cannot be presumed that they have done it. The genius, the
nature, and the spirit, of our State Governments, amount to a prohibition of
such acts of legislation; and the general principles of law and reason forbid
them” (emphasis deleted)). 6See 268 Conn., at 159, 843 A. 2d, at 595
(Zarella, J., concurring in part and dissenting in part) (“The record clearly
demonstrates that the development plan was not intended to serve the interests
of Pfizer, Inc., or any other private entity, but rather, to revitalize the
local economy by creating temporary and permanent jobs, generating a
significant increase in tax revenue, encouraging spin-off economic activities
and maximizing public access to the waterfront”). And while the City intends to
transfer certain of the parcels to a private developer in a long-term
lease—which developer, in turn, is expected to lease the
8 KELO v. NEW LONDON
Opinion of the Court
challenged in Midkiff,
467 U. S., at 245, the
City’s development plan was not adopted “to benefit a particular class of
identifiable individuals.”
On the other
hand, this is not a case in which the City isplanning to open the condemned
land—at least not in its entirety—to use by the general public. Nor will the
private lessees of the land in any sense be required to operate like common
carriers, making their services available to all comers. But although such a
projected use would be sufficient to satisfy the public use requirement, this
“Court long ago rejected any literal requirement thatcondemned property be put
into use for the general public.” Id., at 244. Indeed,
while many state courts in themid-19th century endorsed “use by the public” as
theproper definition of public use, that narrow view steadily eroded over time.
Not only was the “use by the public” test difficult to administer (e.g., what proportion
of the public need have access to the property? at what price?),7 but
it proved to be impractical given the diverse and always evolving needs of
society.8 Accordingly, when this
——————
office space and so forth to other private tenants—the identities of those
private parties were not known when the plan was adopted. It is, of course,
difficult to accuse the government of having taken A’s property to benefit the private interests of B when the identity of B was
unknown. 7See, e.g., Dayton Gold & Silver Mining Co. v.
Seawell, 11 Nev. 394, 410, 1876 WL 4573, *11 (1876) (“If public
occupation and enjoyment of the object for which land is to be condemned
furnishes the only and true test for the right of eminent domain, then the
legislature would certainly have the constitutional authority to condemn the
lands of any private citizen for the purpose of building hotels and theaters.
Why not? A hotel is used by the public as much as a railroad. The public have
the same right, upon payment of a fixed compensation, to seek rest and
refreshment at a public inn as they have to travel upon a railroad”).8From
upholding the Mill Acts (which authorized manufacturers dependent on
power-producing dams to flood upstream lands in exchange for just
compensation), to approving takings necessary for the
9
Cite as: 545 U. S. ____ (2005) Opinion of the Court
Court began
applying the Fifth Amendment to the States at the close of the 19th century, it
embraced the broader and more natural interpretation of public use as “public
purpose.” See, e.g., Fallbrook
Irrigation Dist.
v. Bradley, 164 U. S. 112, 158–164
(1896). Thus, in a case upholding a mining company’s use of an aerial bucket
line to transport ore over property it did not own, Justice Holmes’opinion for
the Court stressed “the inadequacy of use bythe general public as a universal
test.” Strickley
v. Highland
Boy Gold Mining Co., 200
U.
S.
527, 531 (1906).9 We have repeatedly and consistently rejected that
narrow test ever since.10
——————
economic development of the West through mining and irrigation, many state
courts either circumvented the “use by the public” test when necessary or
abandoned it completely. See Nichols, The Meaning of Public Use in the Law of
Eminent Domain, 20 B. U. L. Rev. 615, 619– 624 (1940) (tracing this development
and collecting cases). For example, in rejecting the “use by the public” test
as overly restrictive, the Nevada Supreme Court stressed that “[m]ining is the
greatest of the industrial pursuits in this state. All other interests are
subservient to it. Our mountains are almost barren of timber, and our valleys
could never be made profitable for agricultural purposes except for the fact of
a home market having been created by the mining developments in different
sections of the state. The mining and milling interests give employment to many
men, and the benefits derived from this business are distributed as much, and
sometimes more, among the laboring classes than with the owners of the mines
and mills. . . . The present prosperity of the state is entirely due to the
mining developments already made, and the entire people of the state are
directly interested in having the future developments unobstructed by the
obstinate action of any individual or individuals.” Dayton Gold & Silver Mining Co.,
11 Nev., at 409–410, 1876 WL, at *11. 9See
also Clark v. Nash, 198 U. S. 361 (1905) (upholding a statute that authorized the owner of
arid land to widen a ditch on his neighbor’s property so as to permit a nearby
stream to irrigate his land). 10 See,
e.g., Mt. Vernon-Woodberry Cotton Duck Co. v.
Alabama Interstate Power Co., 240 U. S. 30, 32
(1916) (“The inadequacy of use by the general public as a universal test is
established”); Ruckelshaus v. Monsanto
Co., 467 U. S. 986, 1014–1015 (1984) (“This Court, however, has
rejected the notion that a use is a public use only if the property
10
KELO v. NEW LONDON Opinion of the Court
The disposition
of this case therefore turns on the question whether the City’s development
plan serves a “public purpose.” Without exception, our cases have defined
thatconcept broadly, reflecting our longstanding policy ofdeference to legislative
judgments in this field.
In Berman v. Parker,
348 U. S. 26 (1954), this
Court upheld a redevelopment plan targeting a blighted area of Washington, D. C., in which
most of the housing for thearea’s 5,000 inhabitants was beyond repair. Under
the plan, the area would be condemned and part of it utilized for the
construction of streets, schools, and other public facilities. The remainder of
the land would be leased or sold to private parties for the purpose of
redevelopment, including the construction of low-cost housing.
The owner of a
department store located in the area challenged the condemnation, pointing out
that his store was not itself blighted and arguing that the creation of a
“better balanced, more attractive community” was not a valid public use. Id., at 31. Writing for a
unanimous Court, Justice Douglas refused to evaluate this claim in isolation,
deferring instead to the legislative and agency judgment that the area “must be
planned as a whole” for the plan to be successful. Id., at 34. The
Court explainedthat “community redevelopment programs need not, by force of the
Constitution, be on a piecemeal basis—lot by lot, building by building.” Id., at 35. The
public use underlying the taking was unequivocally affirmed:
“We do not sit to
determine whether a particular
housing project
is or is not desirable. The concept of
the public
welfare is broad and inclusive. . . . The val
ues it represents
are spiritual as well as physical, aes
thetic 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 —————— taken is
put to use for the general public”).
11
Cite as: 545 U. S. ____ (2005) Opinion of the Court
well as clean,
well-balanced as well as carefully patrolled. In the present case, the
Congress and its authorized agencies have made determinations that take into
account a wide variety of values. It is not for us to reappraise them. If those
who govern the District
of Columbia
decide that the Nation’s Capital should be beautiful as well as sanitary, there
is nothing in the Fifth Amendment that stands in the way.” Id., at 33.
In Hawaii
Housing Authority v.
Midkiff, 467 U. S. 229 (1984), the
Court considered a Hawaii statute whereby
fee title was taken from lessors and transferred to lessees (for just
compensation) in order to reduce the concentration of land ownership. We
unanimously upheld the statute and rejected the Ninth Circuit’s view that it
was “a naked attempt on the part of the state of Hawaii to take the
property of A and transfer it to B solely for B’s private use and benefit.” Id., at 235
(internal quotation marks omitted). Reaffirming Berman’s deferential
approach to legislative judgments in this field, we concluded that the State’s
purpose of eliminating the “social and economic evils of a land oligopoly”
qualified as a valid public use. 467 U. S., at 241–242. Our opinion also
rejected the contention that the mere fact that the State immediately
transferred the properties to private individuals upon condemnation somehow
diminished the public character of the taking. “[I]t is only the taking’s
purpose, and not its mechanics,” we explained, that matters in determining
public use. Id., at 244.
In that same Term
we decided another public use casethat arose in a purely economic context. In Ruckelshaus
v. Monsanto, Co., 467 U. S. 986
(1984), the Court dealt with provisions of the Federal Insecticide, Fungicide,
and Rodenticide Act under which the Environmental Protection Agency could
consider the data (including trade secrets)
12 KELO v. NEW LONDON
Opinion of the Court
submitted by a prior pesticide applicant
in evaluating a subsequent application, so long as the second applicant paid
just compensation for the data. We acknowledged that the “most direct
beneficiaries” of these provisions were the subsequent applicants, id., at 1014, but we
nevertheless upheld the statute under Berman and Midkiff. We found
sufficient Congress’ belief that sparing applicants the cost of time-consuming
research eliminated asignificant barrier to entry in the pesticide market and
thereby enhanced competition. 467 U. S., at 1015.
Viewed as a
whole, our jurisprudence has recognized that the needs of society have varied
between different parts of the Nation, just as they have evolved over time in
response to changed circumstances. Our earliest cases in particular embodied a
strong theme of federalism, emphasizing the “great respect” that we owe to
state legislatures and state courts in discerning local public needs. See Hairston
v. Danville
& Western R. Co.,
208 U. S. 598, 606– 607 (1908) (noting that these needs were likely to vary
depending on a State’s “resources, the capacity of the soil, the relative
importance of industries to the general public welfare, and the
long-established methods and habits of the people”).11 For more than
a century, our public use juris
——————
11See also Clark,
198 U. S., at 367–368; Strickley v. Highland
Boy Gold Mining Co., 200 U. S. 527, 531 (1906) (“In the opinion of the legislature
and the Supreme Court of Utah the public welfare of that State demands that
aerial lines between the mines upon its mountain sides and railways in the
valleys below should not be made impossible by the refusal of a private owner
to sell the right to cross his land. The Constitution of the United States does
not require us to say that they are wrong”); O’Neill v.
Leamer, 239 U. S. 244, 253 (1915) (“States may take account of their
special exigencies, and when the extent of their arid or wet lands is such that
a plan for irrigation or reclamation according to districts may fairlybe
regarded as one which promotes the public interest, there is nothing in the
Federal Constitution which denies to them the right to formulate this policy or
to exercise the power of eminent domain in carrying it into effect. With the
local situation the state court is peculiarly familiar and its
Cite
as: 545 U. S. ____ (2005) 13
Opinion of the Court
prudence has
wisely eschewed rigid formulas and intrusive scrutiny in favor of affording
legislatures broad latitude in determining what public needs justify the use
of the takings power.
IV Those who
govern the City were not confronted with the need to remove blight in the Fort
Trumbull area, but their determination that the area was sufficiently
distressed tojustify a program of economic rejuvenation is entitled to our
deference. The City has carefully formulated an economic development plan that
it believes will provide appreciable benefits to the community, including—but
by no means limited to—new jobs and increased tax revenue. As with other
exercises in urban planning and development,12 the City is
endeavoring to coordinate a variety of commercial, residential, and
recreational uses of land, with the hope that they will form a whole greater
than the sum of its parts. To effectuate this plan, the City has invoked astate
statute that specifically authorizes the use of eminent domain to promote
economic development. Given the comprehensive character of the plan, the
thorough deliberation that preceded its adoption, and the limited scope of our
review, it is appropriate for us, as it was in Berman, to resolve the
challenges of the individual owners, not on a piecemeal basis, but rather in
light of the entire plan. Because that plan unquestionably serves a public
purpose, the takings challenged here satisfy the public use requirement of the
Fifth Amendment. To avoid this result, petitioners urge us to adopt a new
bright-line rule that economic development does not qualify as a public use.
Putting aside the unpersuasive suggestion that the City’s plan will provide
only purely eco
——————
judgment is entitled to the highest respect”). 12Cf.
Village of Euclid v. Ambler Realty Co., 272 U.
S. 365 (1926).
14
KELO v. NEW LONDON Opinion of the Court
nomic benefits,
neither precedent nor logic supports petitioners’ proposal. Promoting economic
development is a traditional and long accepted function of government. There
is, moreover, no principled way of distinguishing economic development from the
other public purposes that we have recognized. In our cases upholding takings
that facilitated agriculture and mining, for example, we emphasized the
importance of those industries to the welfareof the States in question, see, e.g.,
Strickley,
200 U. S. 527; in Berman,
we
endorsed the purpose of transforming ablighted area into a “well-balanced”
community throughredevelopment, 348 U. S., at 33;13 in Midkiff, we upheld the
interest in breaking up a land oligopoly that “created artificial deterrents to
the normal functioning of theState’s residential land market,” 467 U. S., at
242; and in Monsanto, we accepted
Congress’ purpose of eliminating a “significant barrier to entry in the
pesticide market,” 467 U. S., at 1014–1015. It would be incongruous to hold
that the City’s interest in the economic benefits to be derived from the
development of the Fort Trumbull area has less of
a public character than any of those other interests. Clearly, there is no
basis for exempting economic devel——————
13It is a misreading
of Berman
to
suggest that the only public use upheld in that case was the initial removal of
blight. See Reply Brief for Petitioners 8. The public use described in Berman extended
beyondthat to encompass the purpose of developing that area to
create conditions that would prevent a reversion to blight in the future. See
348 U.
S.,
at 34–35 (“It was not enough, [the experts] believed, to remove existing
buildings that were insanitary or unsightly. It was important to redesign the
whole area so as to eliminate the conditions that cause slums. . . . The entire
area needed redesigning so that a balanced, integrated plan could be developed
for the region, including not only new homes, but also schools, churches,
parks, streets, and shopping centers. In this way it was hoped that the cycle
of decay of the area could be controlled and the birth of future slums
prevented”). Had the public use in Berman been defined more
narrowly, it would have been difficult to justify the taking of the plaintiff’s
nonblighted department store.
Cite as: 545 U. S. ____ (2005) 15
Opinion of the Court
opment from our traditionally broad
understanding ofpublic purpose.
Petitioners
contend that using eminent domain foreconomic development impermissibly blurs
the boundary between public and private takings. Again, our cases foreclose
this objection. Quite simply, the government’s pursuit of a public purpose will
often benefit individual private parties. For example, in Midkiff, the forced
transfer of property conferred a direct and significant benefit on those
lessees who were previously unable to purchase their homes. In Monsanto, we recognized
that the “most direct beneficiaries” of the data-sharing provisions were the
subsequent pesticide applicants, but benefiting them in this way was necessary
to promoting competition in the pesticide market. 467 U. S., at 1014.14
The owner of the department store in Berman objected to
“taking from onebusinessman for the benefit of another businessman,” 348
U. S., at 33,
referring to the fact that under the redevelopment plan land would be leased
or sold to private developers for redevelopment.15 Our rejection of
that contention has particular relevance to the instant case: “The public end
may be as well or better served through an agency of private enterprise than
through a department of
—————— 14Any number of
cases illustrate that the achievement of a public good often coincides with the
immediate benefiting of private parties. See, e.g., National
Railroad Passenger Corporation v. Boston & Maine Corp., 503 U. S. 407, 422
(1992) (public purpose of “facilitating Amtrak’s rail service” served by taking
rail track from one private company and transferring it to another private
company); Brown
v. Legal
Foundation of Wash.,
538 U. S. 216 (2003) (provision of legal services to the poor is a valid public
purpose). It is worth noting that in Hawaii Housing Authority v. Midkiff,
467 U. S. 229 (1984), Monsanto, and Boston
& Maine Corp.,
the property in question retained the same use even after the change of
ownership. 15Notably, as in the
instant case, the private developers in Berman were required by
contract to use the property to carry out the redevelopment plan. See 348 U. S., at 30.
16 KELO v. NEW LONDON Opinion of the
Court
government—or so the Congress might
conclude. We cannot say that public ownership is the sole method of promoting
the public purposes of community redevelopment projects.” Id., at 34.16
It is further
argued that without a bright-line rule nothing would stop a city from
transferring citizen A’s property to
citizen B
for
the sole reason that citizen B will put the property to a more
productive use and thus pay more taxes. Such a one-to-one transfer of property,
executed outside the confines of an integrated development plan, is not
presented in this case. While such an unusual exercise of government power
would certainly raise a suspicion that a private purpose was afoot,17 the
hypo——————
16Nor do our cases
support JUSTICE
O’CONNOR’s novel theory
that the government may only take property and transfer it to private parties
when the initial taking eliminates some “harmful property use.” Post, at 8 (dissenting
opinion). There was nothing “harmful” about the nonblighted department store at
issue in Berman, 348 U. S. 26; see also n.
13, supra;
nothing
“harmful” about the lands at issue in the mining and agriculture cases, see, e.g., Strickley, 200 U. S. 527; see also nn.
9, 11, supra;
and
certainly nothing “harmful” about the trade secrets owned by the pesticide
manufacturers in Monsanto, 467 U. S. 986. In each
case, the public purpose we upheld depended on a private party’s future use of the
concededly nonharmful property that was taken. Byfocusing on a property’s
future use, as opposed to its past use, our cases are faithful to the text of
the Takings Clause. See U. S. Const., Amdt.
5. (“[N]or shall private property be
taken for public use, without just compensation”). JUSTICE O’CONNOR’s intimation that
a “public purpose” may not be achieved by the action of private parties, see post, at 8, confuses
the purpose
of a
taking with its mechanics, a mistake we
warned of in Midkiff, 467 U. S., at 244. See also
Berman, 348 U. S., at 33–34 (“The
public end may be as well or better served through an agency of private
enterprise than through a department of government”).
17Courts have viewed
such aberrations with a skeptical eye. See, e.g., 99 Cents
Only Stores v.
Lancaster
Redevelopment Agency,
237 F. Supp. 2d 1123 (CD Cal. 2001); cf. Cincinnati v. Vester, 281 U. S. 439, 448 (1930)
(taking invalid under state eminent domain statute for lack of a reasoned
explanation). These types of takings may also implicate other constitutional
guarantees. See Village of Willowbrook v. Olech, 528
17 Cite as: 545 U. S. ____ (2005)
Opinion of the Court
thetical cases posited by petitioners can
be confronted if and when they arise.18 They do not warrant the
crafting ofan artificial restriction on the concept of public use.19
Alternatively,
petitioners maintain that for takings of this kind we should require a
“reasonable certainty” that the expected public benefits will actually accrue.
Such a rule, however, would represent an even greater departure from our
precedent. “When the legislature’s purpose is legitimate and its means are not
irrational, our casesmake clear that empirical debates over the wisdom
oftakings—no less than debates over the wisdom of other kinds of socioeconomic
legislation—are not to be carried out in the federal courts.” Midkiff,
467 U. S., at 242.20 ——————
U. S. 562 (2000) (per
curiam).
18Cf. Panhandle
Oil Co. v.
Mississippi ex rel.
Knox, 277
U. S. 218, 223 (1928)
(Holmes, J., dissenting) (“The power to tax is not the power to destroy while
this Court sits”).
19A parade of
horribles is especially unpersuasive in this context, since the Takings Clause
largely “operates as a conditional limitation, permitting the government to do
what it wants so long as it pays the charge.” Eastern Enterprises v. Apfel, 524 U. S. 498, 545 (1998)
(KENNEDY, J., concurring
in judgment and dissenting in part). Speaking of the takings power, Justice
Iredell observed that “[i]t is not sufficient to urge, that the power may be
abused, for, such is the nature of all power—such is the tendency of every
human institution: and, it might as fairly be said, that the power of taxation,
which is only circumscribed by the discretion of the Body, in which it is
vested, ought not to be granted, because the Legislature, disregarding its true
objects, might, for visionary and useless projects, impose a tax to the amount
of nineteen shillings in the pound. We must be content to limit power where we
can, and where we cannot, consistently with its use, we must be content to
repose a salutory confidence.” Calder, 3 Dall., at 400 (opinion concurring in
result).
20See also Boston
& Maine Corp., 503
U. S., at 422–423 (“[W]e need not make a specific factual determination whether
the condemnation will accomplish its objectives”); Monsanto, 467 U. S., at
1015, n. 18 (“Monsanto argues that EPA and, by implication, Congress,
misapprehended the true ‘barriers to entry’ in the pesticide industry and that
the challenged provisions of the law create, rather than reduce, barriers to
entry. . . . Such economic arguments are better directed to Congress.
18 KELO v. NEW LONDON Opinion of the
Court
Indeed, earlier this Term we explained
why similar practical concerns (among others) undermined the use of
the“substantially advances” formula in our regulatory takings doctrine. See Lingle v. Chevron
U. S. A. Inc.,
544 U.
S.
___, ___ (2005) (slip op., at 14–15) (noting that this formula “would
empower—and might often require—courts to substitute their predictive judgments
for those of elected legislatures and expert agencies”). The disadvantages of
a heightened form of review are especially pronounced in this type of case.
Orderly implementation of a comprehensive redevelopment plan obviously
requiresthat the legal rights of all interested parties be established before
new construction can be commenced. A constitutional rule that required
postponement of the judicial approval of every condemnation until the
likelihood of success of the plan had been assured would unquestionably impose
a significant impediment to the successfulconsummation of many such plans.
Just as we
decline to second-guess the City’s considered judgments about the efficacy of
its development plan, we also decline to second-guess the City’s determinations
as to what lands it needs to acquire in order to effectuate the project. “It is
not for the courts to oversee the choice of the boundary line nor to sit in
review on the size of a particular project area. Once the question of the
public purpose has been decided, the amount and character of land to be taken
for the project and the need for a particular tract to complete the integrated
plan rests in the discretion of the legislative branch.” Berman, 348 U. S., at 35–36.
In affirming the
City’s authority to take petitioners’ properties, we do not minimize the
hardship that condem
——————
The proper inquiry before this Court is not whether the provisions in fact will
accomplish their stated objectives. Our review is limited to determining that
the purpose is legitimate and that Congress rationally could have believed that
the provisions would promote that objective”).
19
Cite as: 545 U.
S.
____ (2005) Opinion of the Court
nations may
entail, notwithstanding the payment of just compensation.21 We
emphasize that nothing in our opinion precludes any State from placing further
restrictions on its exercise of the takings power. Indeed, many States already
impose “public use” requirements that are stricter than the federal baseline.
Some of these requirements have been established as a matter of state
constitutional law,22 while others are expressed in state eminent
domainstatutes that carefully limit the grounds upon which takings may be
exercised.23 As the submissions of the parties and their amici make clear, the
necessity and wisdom ofusing eminent domain to promote economic development are
certainly matters of legitimate public debate.24 This Court’s
authority, however, extends only to determining whether the City’s proposed
condemnations are for a “public use” within the meaning of the Fifth Amendment
to the Federal Constitution. Because over a century of our
—————— 21The amici raise questions
about the fairness of the measure of just compensation. See, e.g., Brief for
American Planning Association et al. as Amici Curiae 26–30. While
important, these questions are not before us in this litigation. 22See, e.g., County of Wayne v.
Hathcock,
471 Mich. 445, 684 N. W. 2d
765 (2004). 23Under California law, for
instance, a city may only take land for economic development purposes in
blighted areas. Cal. Health &
Safety Code Ann. §§33030–33037 (West 1997). See, e.g., Redevelopment
Agency of Chula Vista v.
Rados
Bros.,
95 Cal. App. 4th 309
(2002). 24For example, some
argue that the need for eminent domain has been greatly exaggerated because
private developers can use numerous techniques, including secret negotiations
or precommitment strategies, to overcome holdout problems and assemble lands
for genuinely profitable projects. See Brief for Jane Jacobs as Amicus
Curiae 13–15;
see also Brief for John Norquist as Amicus Curiae. Others argue to
the contrary, urging that the need for eminent domain is especially great with
regard to older, small cities like New London, where centuries
of development have created an extreme overdivision of land and thus a real
market impediment to land assembly. See Brief for Connecticut Conference for
Municipalities et al. as Amici
Curiae 13,
21; see also Brief for National League of Cities et al. as Amici
Curiae.
20 KELO v. NEW LONDON
Opinion of the Court
case law interpreting that provision
dictates an affirmative answer to that question, we may not grant petitioners
the relief that they seek.
The judgment of
the Supreme Court of Connecticut is affirmed.
It is so ordered.
_________________ _________________ 1 Cite as: 545 U. S. ____ (2005)
KENNEDY, J.,
concurring
SUPREME COURT OF THE UNITED STATES
No. 04–108
SUSETTE KELO, ET
AL., PETITIONERS v. CITY OF NEW LONDON, CONNECTICUT, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT
[June 23, 2005]
JUSTICE KENNEDY, concurring.
I join the opinion for the Court and add these further
observations.
This Court has declared that a taking should be upheld
as consistent with the Public Use Clause, U. S. Const., Amdt. 5., as long as it
is “rationally related to a conceivable public purpose.” Hawaii
Housing Authority v. Midkiff,
467 U.
S. 229, 241 (1984); see also Berman v. Parker, 348
U. S.
26 (1954). This deferential standard of review echoes the rational-basis test
used to review economic regulation under the Due Process and Equal
ProtectionClauses, see, e.g., FCC v.
Beach
Communications, Inc., 508 U. S. 307,
313–314 (1993); Williamson
v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). The determination that a
rational-basis standard of review is appropriate does not, however, alter the
fact that transfers intended to confer benefits on particular, favored private
entities, andwith only incidental or pretextual public benefits, are forbidden
by the Public Use Clause.
A court applying rational-basis review under the
Public Use Clause should strike down a taking that, by a clear showing, is
intended to favor a particular private party, with only incidental or
pretextual public benefits, just as a court applying rational-basis review
under the Equal Protection Clause must strike down a government classifi
2 KELO v. NEW
LONDON KENNEDY, J., concurring
cation that is clearly intended to injure a particular
class of private parties, with only incidental or pretextual public
justifications. See Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 446–447, 450 (1985); Department
of Agriculture v. Moreno, 413 U. S. 528, 533–536 (1973). As the trial court in this case
was correct to observe, “Where the purpose [of a taking] is economic
development and that development is to be carried out by private parties or
private parties will be benefited, the court must decide if the stated public
purpose—economic advantage to a city sorely in need of it—is only incidental to
the benefits that will be confined on private parties of a development plan.” 2
App. to Pet. for Cert. 263. See also ante, at 7.
A court confronted with a plausible accusation of
impermissible favoritism to private parties should treat theobjection as a
serious one and review the record to see if it has merit, though with the
presumption that the govern-ment’s actions were reasonable and intended to
serve a public purpose. Here, the trial court conducted a careful and extensive
inquiry into “whether, in fact, the development plan is of primary benefit to
. . . the developer [i.e., Corcoran Jennison], and private businesses which may
eventually locate in the plan area [e.g., Pfizer], and in thatregard, only of incidental
benefit to the city.” 2 App. to Pet. for Cert. 261. The trial court considered
testimonyfrom government officials and corporate officers; id., at 266–271; documentary evidence of communications
between these parties, ibid.; respondents’ awareness of New London’s depressed
economic condition and evidencecorroborating the validity of this concern, id., at 272–273, 278–279; the substantial commitment of
public funds by the State to the development project before most of theprivate
beneficiaries were known, id.,
at 276; evidence that respondents reviewed a variety of development plans and
chose a private developer from a group of applicants rather than picking out a
particular transferee before
3 Cite as: 545 U.
S. ____ (2005)
KENNEDY, J., concurring
hand, id., at 273, 278; and the fact that the other private
beneficiaries of the project are still unknown because the office space
proposed to be built has not yet been rented, id., at 278.
The trial court concluded, based on these findings,
that benefiting Pfizer was not “the primary motivation or effect of this
development plan”; instead, “the primary motivation for [respondents] was to
take advantage of Pfizer’s presence.” Id., at 276.
Likewise, the trial court concluded that “[t]here is nothing in the record to
indicate that . . . [respondents] were motivated by a desire to aid [other]particular
private entities.” Id., at 278. See
also ante, at 7–8. Even the dissenting justices on the ConnecticutSupreme Court agreed that respondents’ development plan was
intended to revitalize the local economy, not toserve the interests of Pfizer,
Corcoran Jennison, or anyother private party. 268 Conn. 1, 159,
843 A. 2d 500, 595 (2004) (Zarella, J., concurring in part and dissenting in
part). This case, then, survives the meaningful rational basis review that in
my view is required under the Public Use Clause.
Petitioners and their amici argue that any taking justified by the promotion of
economic development must be treated by the courts as per se invalid, or at least presumptively invalid.
Petitioners overstate the need for such a rule, however, by making the
incorrect assumption that review under Berman and Midkiff imposes
no meaningful judicial limits on the government’s power to condemn any
property it likes. A broad per se rule
or a strong presumption of invalidity, furthermore, 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.
My agreement with the Court that a presumption
ofinvalidity is not warranted for economic development
4 KELO v. NEW LONDON KENNEDY, J., concurring
takings
in general, or for the particular takings at issue in this case, does not
foreclose the possibility that a morestringent standard of review than that
announced in Berman
and Midkiff might be appropriate for a more narrowly drawn
category of takings. There may be private transfers in which the risk of
undetected impermissible favoritism of private parties is so acute that a
presumption (rebuttable or otherwise) of invalidity is warranted under the
Public Use Clause. Cf. Eastern
Enterprises v. Apfel, 524 U. S. 498, 549–550 (1998) (KENNEDY, J., concurring in judgment
and dissenting in part) (heightened scrutiny for retroactive legislation under
the Due Process Clause). This demanding level of scrutiny, however, is not
required simply because the purpose of the taking is economic development.
This is not the occasion for conjecture as to what
sort of cases might justify a more demanding standard, but it isappropriate to
underscore aspects of the instant case that convince me no departure from Berman and Midkiff is
appropriate here. This taking occurred in the context of a comprehensive
development plan meant to address a serious city-wide depression, and the
projected economic benefits of the project cannot be characterized as de
mini-mus. The identity of most of the
private beneficiaries were unknown at the time the city formulated its plans.
The city complied with elaborate procedural requirements thatfacilitate review
of the record and inquiry into the city’s purposes. In sum, while there may be
categories of cases in which the transfers are so suspicious, or the procedures
employed so prone to abuse, or the purported benefits are so trivial or
implausible, that courts should presume an impermissible private purpose, no
such circumstances are present in this case.
* * * For the foregoing
reasons, I join in the Court’s opinion.
_________________
_________________ 1 Cite
as: 545 U. S. ____ (2005)
O’CONNOR, J., dissenting
SUPREME
COURT OF THE UNITED STATES
No. 04–108
SUSETTE KELO, ET
AL., PETITIONERS v. CITY OF NEW LONDON, CONNECTICUT, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT
[June 23, 2005]
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE,
JUSTICE SCALIA,
and JUSTICE THOMAS join,
dissenting. Over two centuries ago, just after the Bill of Rights was
ratified, Justice Chase wrote: “An ACT of the
Legislature (for I cannot call it a law) contrary to the great first principles
of the social compact, cannot be considered a rightful exercise of legislative
authority . . . . A few instances will suffice to explain what I mean. . . .
[A] law that takes property from A. and gives it to B: It is against all reason
and justice, for a people to entrust a Legislature with SUCH powers; and,
therefore, it cannot be presumed that they have done it.” Calder v. Bull,
3 Dall. 386, 388 (1798) (emphasis deleted).
Today the Court abandons this
long-held, basic limitation on government power. Under the banner of economic
development, all private property is now vulnerable to being taken and
transferred to another private owner, so long as it might be upgraded—i.e., given to an owner whowill use it in a way that the
legislature deems more beneficial to the public—in the process. To reason, as
the Court does, that the incidental public benefits resulting from the
subsequent ordinary use of private property render economic development takings
“for public use” is to
2 KELO v. NEW
LONDON O’CONNOR, J., dissenting
wash out any distinction between private and public
use of property—and thereby effectively to delete the words “for public use”
from the Takings Clause of the Fifth Amendment. Accordingly I respectfully
dissent.
I Petitioners are nine resident or investment owners
of 15 homes in the Fort Trumbull neighborhood of New
London, Connecticut. Petitioner Wilhelmina
Dery, for example, lives in a house on Walbach
Street that has been in her family for
over 100 years. She was born in the house in 1918; her husband, petitioner
Charles Dery, moved into the house when they married in 1946. Their son lives
next door with his family in the house he received as a wedding gift, and joins
his parents in this suit. Two petitionerskeep rental properties in the
neighborhood. In February 1998, Pfizer Inc., the pharmaceuticals manufacturer,
announced that it would build a global research facility near the Fort Trumbull
neighborhood. Two months later, New
London’s city council gave initial
approval for the New London Development Corporation (NLDC) to prepare the
development plan at issue here. The NLDC is a private, nonprofit corporation
whose mission is to assist the city council in economic development planning.
It is not elected by popular vote, and its directors and employees are
privately appointed. Consistent with its mandate, the NLDC generated an
ambitious plan for redeveloping 90 acres of Fort Trumbull in order to
“complement the facility that Pfizer was planning to build, create jobs,
increase tax and other revenues, encourage public access to and use of the
city’s waterfront, and eventually ‘build momentum’ for the revitalization of
the restof the city.” App. to Pet. for Cert. 5. Petitioners own properties in
two of the plan’s seven parcels—Parcel 3 and Parcel 4A. Under the plan, Parcel
3 is slated for the construction of research and office space
3 Cite as: 545 U.
S. ____ (2005)
O’CONNOR, J., dissenting
as a
market develops for such space. It will also retain the existing Italian
Dramatic Club (a private cultural organization) though the homes of three
plaintiffs in that parcel are to be demolished. Parcel 4A is slated,
mysteriously, for “ ‘park support.’ ” Id., at 345–346. At oral argument,counsel for respondents
conceded the vagueness of this proposed use, and offered that the parcel might
eventually be used for parking. Tr. of Oral Arg. 36.
To save their homes, petitioners sued New London and
the NLDC, to whom New London has delegated eminent domain power. Petitioners
maintain that the Fifth Amendment prohibits the NLDC from condemning
theirproperties for the sake of an economic development plan. Petitioners are
not hold-outs; they do not seek increasedcompensation, and none is opposed to
new development in the area. Theirs is an objection in principle: They
claimthat the NLDC’s proposed use for their confiscated property is not a
“public” one for purposes of the Fifth Amendment. While the government may
take their homes to build a road or a railroad or to eliminate a property
usethat harms the public, say petitioners, it cannot take their property for
the private use of other owners simply because the new owners may make more
productive use of the property.
II The Fifth Amendment to the Constitution, made applicable
to the States by the Fourteenth Amendment, provides that “private property
[shall not] be taken for public use, without just compensation.” When
interpreting theConstitution, we begin with the unremarkable presumption that
every word in the document has independentmeaning, “that no word was
unnecessarily used, or needlessly added.” Wright v. United States, 302 U. S. 583, 588 (1938). In keeping with that presumption, we
have read the Fifth Amendment’s language to impose two distinct
4 KELO v. NEW
LONDON O’CONNOR, J., dissenting
conditions
on the exercise of eminent domain: “the taking must be for a ‘public use’ and
‘just compensation’ must be paid to the owner.” Brown v. Legal Foundation of Wash., 538 U. S. 216, 231–232 (2003).
These two limitations serve to protect “the security
of Property,” which Alexander Hamilton described to the Philadelphia Convention
as one of the “great obj[ects] of Gov[ernment].” 1 Records of the Federal
Convention of 1787, p. 302 (M. Farrand ed. 1934). Together they ensurestable
property ownership by providing safeguards against excessive, unpredictable, or
unfair use of the government’s eminent domain power—particularly against those
owners who, for whatever reasons, may be unable to protect themselves in the
political process against the majority’s will.
While the Takings Clause presupposes that government
can take private property without the owner’s consent, the just compensation
requirement spreads the cost of condemnations and thus “prevents the public
from loading upon one individual more than his just share of the burdens of
government.” Monongahela
Nav. Co. v. United
States, 148 U. S. 312, 325
(1893); see also Armstrong
v. United States, 364 U. S. 40, 49 (1960). The public use requirement, in turn,
imposes a more basic limitation, circumscribing the very scope of the eminent
domain power: Government may compel an individual to forfeit her property for
the public’s
use, but not for the benefit of another
private person. This requirement promotes fairness as well as security. Cf. Tahoe-Sierra
Preservation Council, Inc. v. Tahoe
Regional Planning Agency, 535 U. S. 302, 336
(2002) (“The concepts of ‘fairness and justice’ . . . underlie the Takings
Clause”).
Where is the line between “public” and “private” property
use? We give considerable deference to legislatures’ determinations about what
governmental activities will advantage the public. But were the political
branches the
5 Cite as: 545 U.
S. ____ (2005)
O’CONNOR, J., dissenting
sole
arbiters of the public-private distinction, the Public Use Clause would amount
to little more than hortatory fluff. An external, judicial check on how the
public use requirement is interpreted, however limited, is necessary if this
constraint on government power is to retain any meaning. See Cincinnati v. Vester,
281 U. S. 439, 446 (1930) (“It is well established that . . . the question [of]
what is a public use is a judicial one”).
Our cases have generally identified three categories
of takings that comply with the public use requirement, though it is in the
nature of things that the boundaries between these categories are not always
firm. Two are relatively straightforward and uncontroversial. First, the
sovereign may transfer private property to public owner-ship—such as for a
road, a hospital, or a military base. See, e.g., Old Dominion Land Co. v. United States, 269
U. S.
55 (1925); Rindge
Co. v. County of Los
Angeles, 262
U. S.
700 (1923). Second, the sovereign may transfer private property to private
parties, often common carriers, who make the property available for the
public’s use—such as with a railroad, a public utility, or a stadium. See, e.g., National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U. S. 407 (1992); Mt.
Vernon-Woodberry Cotton Duck Co. v. Alabama
Interstate Power Co., 240
U. S.
30 (1916). But “public ownership” and “use-by-the-public” are sometimes too
constricting and impractical ways to define the scope of the Public Use Clause.
Thus we have allowed that, in certain circumstances and to meet certain
exigencies, takings that serve a public purpose also satisfy the Constitution
even if the property is destined for subsequent private use. See, e.g., Berman v.
Parker, 348 U. S. 26 (1954); Hawaii Housing Authority v. Midkiff,
467 U. S. 229 (1984).
This case returns us for the first time in over 20
years tothe hard question of when a purportedly “public purpose” taking meets
the public use requirement. It presents an
6 KELO v. NEW LONDON O’CONNOR, J., dissenting
issue
of first impression: Are economic development takings constitutional? I would
hold that they are not. We are guided by two precedents about the taking of
real property by eminent domain. In Berman, we upheldtakings within a blighted neighborhood of
Washington, D. C. The neighborhood had so deteriorated that, forexample, 64.3%
of its dwellings were beyond repair. 348 U.
S., at 30. It had become burdened with
“overcrowding of dwellings,” “lack of adequate streets and alleys,” and “lack
of light and air.” Id., at 34. Congress had determined that the neighborhood
had become “injurious to the public health, safety, morals, and welfare” and
that it was necessary to “eliminat[e] all such injurious conditions by
employing all means necessary and appropriate for the purpose,” including
eminent domain. Id., at 28. Mr.
Berman’s department store was not itself blighted. Having approved of
Congress’ decision to eliminate the harm to the public emanating from the
blighted neighborhood, however, we did not second-guess its decision to treat
the neighborhood as a whole rather than lot-by-lot. Id., at 34–35;
see also Midkiff, 467 U. S., at 244 (“it is only the taking’s purpose, and not its
mechanics, that must passscrutiny”).
In Midkiff,
we upheld a land condemnation scheme inHawaii whereby title in real property
was taken from lessors and transferred to lessees. At that time, the State and
Federal Governments owned nearly 49% of the State’s land, and another 47% was
in the hands of only 72 private landowners. Concentration of land ownership was
so dramatic that on the State’s most urbanized island, Oahu, 22
landowners owned 72.5% of the fee simple titles. Id., at 232. The Hawaii Legislature had concluded that
theoligopoly in land ownership was “skewing the State’s residential fee simple
market, inflating land prices, and injuring the public tranquility and
welfare,” and therefore enacted a condemnation scheme for redistributing title.
7 Cite as: 545 U.
S. ____ (2005)
O’CONNOR, J., dissenting
Ibid.
In those decisions, we emphasized the importance
ofdeferring to legislative judgments about public purpose. Because courts are
ill-equipped to evaluate the efficacy of proposed legislative initiatives, we
rejected as unworkable the idea of courts’ “ ‘deciding on what is and is not a
governmental function and . . . invalidating legislation on the basis of their
view on that question at the moment of decision, a practice which has proved
impracticable in other fields.’ ” Id., at 240–241 (quoting United States ex
rel. TVA v. Welch, 327 U. S. 546, 552 (1946)); see Berman, supra,
at 32 (“[T]he legislature, not the judiciary, is the main guardian of the
public needs to be served by social legislation”); see also Lingle v. Chevron U. S. A., Inc., 544 U. S. __ (2005). Likewise, we recognized our inability to
evaluate whether, in a given case, eminent domain is a necessary means by which
to pursue the legislature’s ends. Midkiff, supra,
at 242; Berman, supra,
at 103.
Yet for all the emphasis on deference, Berman and Midkiff hewed
to a bedrock principle without which our public use jurisprudence would
collapse: “A purely private taking could not withstand the scrutiny of the
public userequirement; it would serve no legitimate purpose ofgovernment and
would thus be void.” Midkiff, 467 U. S., at 245; id., at 241 (“[T]he Court’s cases have repeatedly stated
that ‘one person’s property may not be taken for the benefit of another private
person without a justifying public purpose, even though compensation be paid’ ”
(quoting Thompson
v. Consolidated Gas Util. Corp., 300 U. S. 55, 80 (1937))); see also Missouri
Pacific R. Co. v. Nebraska, 164 U. S. 403, 417 (1896). To protect that principle,
those decisions reserved “a role for courts to play in reviewing a
legislature’s judgment of what constitutes a public use . . . [though] the
Court in Berman
made clear that it is ‘an extremely
narrow’ one.” Midkiff, supra,
at 240 (quoting Berman, supra,
at 32).
8 KELO v. NEW
LONDON O’CONNOR, J., dissenting
The Court’s holdings in Berman and Midkiff were
true to the principle underlying the Public Use Clause. In both those cases,
the extraordinary, precondemnation use of the targeted property inflicted
affirmative harm on society—in Berman through
blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And
in both cases, the relevant legislative body had found that eliminating the
existing property use was necessary to remedy the harm. Berman, supra,
at 28–29; Midkiff, supra,
at 232. Thus a public purpose was realized when the harmful use was eliminated.
Because each taking directly
achieved a public benefit, it did not
matter that the property was turned over to private use. Here, in contrast, New London
does not claim that Susette Kelo’s and Wilhelmina Dery’s well-maintained homes
are the source of any social harm. Indeed, it could not so claim without
adopting the absurd argument that any single-family home that might be razed to
make way for an apartment building, or any church that might be replaced with a
retail store, or any small business that might be more lucrative if it were
instead part of a national franchise, is inherently harmful to society and
thus within the government’s power to condemn.
In moving away from our decisions sanctioning the
condemnation of harmful property use, the Court today significantly expands the
meaning of public use. It holds that the sovereign may take private property
currently put to ordinary private use, and give it over for new, ordinary
private use, so long as the new use is predicted to generate some secondary
benefit for the public—such as increased tax revenue, more jobs, maybe even
aesthetic pleasure. But nearly any lawful use of real private property can be
said to generate some incidental benefit to the public. Thus, if predicted (or
even guaranteed) positive side-effects are enough to render transfer from one
privateparty to another constitutional, then the words “for public
9 Cite as: 545 U.
S. ____ (2005)
O’CONNOR, J., dissenting
use” do
not realistically exclude any takings,
and thus donot exert any constraint on the eminent domain power.
There is a sense in which this troubling result
followsfrom errant language in Berman and
Midkiff. In discussing whether takings within a blighted
neighborhood were for a public use, Berman began by observing: “We deal, in other words, with
what traditionally has been known as the police power.” 348 U. S., at 32.
From there it declared that “[o]nce the object is within the authority of
Congress, the right to realize it through the exercise of eminentdomain is
clear.” Id., at 33.
Following up, we said in Midkiff
that “[t]he ‘public use’ requirement is
coterminous with the scope of a sovereign’s police powers.” 467 U. S., at 240.
This language was unnecessary to the specific holdings of those decisions. Berman and Midkiff simplydid
not put such language to the constitutional test, because the takings in those
cases were within the police power but also for “public use” for the reasons I
have described. The case before us now demonstrates why, when deciding if a
taking’s purpose is constitutional, the police power and “public use” cannot
always be equated.
The Court protests that it does not sanction the bare
transfer from A to B for B’s benefit. It suggests two limitations on what can
be taken after today’s decision. First, it maintains a role for courts in
ferreting out takings whose sole purpose is to bestow a benefit on the private
transferee—without detailing how courts are to conduct that complicated
inquiry. Ante, at 7. For his part,JUSTICE KENNEDY suggests
that courts may divine illicit purpose by a careful review of the record and
the process by which a legislature arrived at the decision to take— without
specifying what courts should look for in a case with different facts, how they
will know if they have found it, and what to do if they do not. Ante, at 2–3 (concurring opinion). Whatever the details of
JUSTICE KENNEDY’s as-yet-undisclosed test, it is difficult to
envision anyone but
10 KELO v. NEW
LONDON
O’CONNOR, J., dissenting
the
“stupid staff[er]” failing it. See Lucas v. South Carolina
Coastal Council, 505 U. S. 1003,
1025–1026, n. 12 (1992). The trouble with economic development takings is that
private benefit and incidental public benefit are, by definition, merged and
mutually reinforcing. In this case, for example, any boon for Pfizer or the
plan’s developer is difficult to disaggregate from the promised public gains in
taxes and jobs. See App. to Pet. for Cert. 275–277.
Even if there were a practical way to isolate the
motives behind a given taking, the gesture toward a purpose test is
theoretically flawed. If it is true that incidental public benefits from new
private use are enough to ensure the “public purpose” in a taking, why should
it matter, as far as the Fifth Amendment is concerned, what inspired thetaking
in the first place? How much the government doesor does not desire to benefit a
favored private party has no bearing on whether an economic development taking
will or will not generate secondary benefit for the public. And whatever the
reason for a given condemnation, the effect is the same from the constitutional
perspective—private property is forcibly relinquished to new private ownership.
A second proposed limitation is implicit in the
Court’sopinion. The logic of today’s decision is that eminent domain may only
be used to upgrade—not downgrade— property. At best this makes the Public Use
Clause redundant with the Due Process Clause, which already prohibits
irrational government action. See Lingle, 544 U. S. __. The Court rightfully admits, however, that the
judiciary cannot get bogged down in predictive judgments about whether the
public will actually be better off after a property transfer. In any event,
this constraint has no realistic import. For who among us can say she already
makes the most productive or attractive possible use of her property? The
specter of condemnation hangs over all property. Nothing is to prevent the
State from replacing any Motel 6 with a Ritz-Carlton, any home with a shop
11 Cite as: 545 U.
S. ____ (2005)
O’CONNOR, J., dissenting
ping
mall, or any farm with a factory. Cf. Bugryn v. Bristol,
63 Conn. App. 98, 774 A. 2d 1042 (2001) (taking the homes and farm of four
owners in their 70’s and 80’s and giving it to an “industrial park”); 99
Cents Only Stores v. Lancaster
Redevelopment Authority, 237 F. Supp. 2d
1123 (CD Cal. 2001) (attempted taking of 99 Cents store to replace with a
Costco); Poletown
Neighborhood Council v. Detroit, 410 Mich. 616, 304 N. W. 2d 455 (1981) (taking a
working-class, immigrant community in Detroit and giving it to a General
Motors assembly plant), overruled by County of Wayne v. Hathcock,
471 Mich. 415, 684 N. W. 2d 765 (2004); Brief for the Becket Fund for Religious
Liberty as Amicus
Curiae 4–11 (describing takings of
religious institutions’ properties); Institute for Justice, D. Berliner, Public
Power, Private Gain: A Five-Year, State-by-State Report Examining the Abuse of
Eminent Domain (2003) (collecting accounts of economic development takings).
The Court also puts special emphasis on facts
peculiarto this case: The NLDC’s plan is the product of a relatively careful
deliberative process; it proposes to use eminent domain for a multipart,
integrated plan rather than for isolated property transfer; it promises an
array of incidental benefits (even aesthetic ones), not just increased tax
revenue; it comes on the heels of a legislative determination that New London
is a depressed municipality. See, e.g., ante,
at 16 (“[A] one-to-one transfer of property, executed outside the confines of
an integrated development plan, is not presented in this case”). JUSTICE KENNEDY, too,
takes great comfort in these facts. Ante, at 4 (concurring opinion). But none has legal
significance to blunt the force of today’s holding. If legislative
prognostications about the secondary public benefits of a new use can legitimate
a taking, there is nothing in the Court’s rule or in JUSTICE KENNEDY’s gloss on
that rule to prohibit property transfers generated with less care, that are
less comprehensive, that happen to result from less elaborate process,
12 KELO v. NEW
LONDON O’CONNOR, J., dissenting
whose only projected advantage is the incidence of
higher taxes, or that hope to transform an already prosperous city into an even
more prosperous one.
Finally, in a coda, the Court suggests that property
owners should turn to the States, who may or may not choose to impose appropriate
limits on economic development takings. Ante, at 19. This is an abdication of our responsibility.
States play many important functions in our system of dual sovereignty, but
compensating for our refusal to enforce properly the Federal Constitution (and
a provision meant to curtail state action, no less) is not among them.
* * *
It was possible after Berman and Midkiff to
imagineunconstitutional transfers from A to B. Those decisions endorsed
government intervention when private propertyuse had veered to such an extreme
that the public was suffering as a consequence. Today nearly all real property
is susceptible to condemnation on the Court’s theory. In the prescient words of
a dissenter from the infamous decision in Poletown, “[n]ow that we have authorized local legislative
bodies to decide that a different commercial or industrial use of property will
produce greater public benefits than its present use, no homeowner’s,
merchant’s or manufacturer’s property, however productive or valuable to its
owner, is immune from condemnation for the benefit of other private interests
that will put it to a ‘higher’ use.” 410 Mich., at 644–645, 304 N. W. 2d, at 464 (opinion of
Fitzgerald, J.). This is why economic development takings “seriously
jeopardiz[e] the security of all private property ownership.” Id., at 645, 304
N. W. 2d, at 465 (Ryan, J., dissenting).
Any property may now be taken for the benefit of another
private party, but the fallout from this decision will not be random. The
beneficiaries are likely to be those
13 Cite as: 545 U.
S. ____ (2005) O’CONNOR, J.,
dissenting
citizens with disproportionate influence and power in
the political process, including large corporations and development firms. As
for the victims, the government now has license to transfer property from those
with fewer resources to those with more. The Founders cannot have intended
this perverse result. “[T]hat alone is a just government,” wrote James Madison, “which impartially
secures to every man, whatever is his own.” For the National Gazette, Property, (Mar. 29, 1792),
reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983).
I would hold that the takings in both Parcel 3 and Parcel
4A are unconstitutional, reverse the judgment of the Supreme Court of Connecticut,
and remand for further proceedings.
_________________
_________________ Cite
as: 545 U.
S.
____ (2005) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 04–108
SUSETTE KELO, ET AL., PETITIONERS v. CITY OF NEW
LONDON,
CONNECTICUT, ET AL.
ON WRIT OF
CERTIORARI TO THE SUPREME COURT OF CONNECTICUT
[June 23, 2005]
JUSTICE THOMAS, dissenting.
Long ago, William
Blackstone wrote that “the law of the land . . . postpone[s] even public
necessity to the sacred and inviolable rights of private property.” 1 Commentaries
on the Laws of England 134–135 (1765) (hereinafter Blackstone). The Framers
embodied that principle in the Constitution, allowing the government to take
property not for “public necessity,” but instead for “public use.” Amdt. 5.
Defying this understanding, the Court replaces the Public Use Clause with a
“‘[P]ublic [P]urpose’ ” Clause, ante, at 9–10 (or
perhaps the “Diverse and Always Evolving Needs of Society” Clause, ante, at 8
(capitalization added)), a restriction that is satisfied, the Court instructs,
so long as the purpose is “legitimate” and the means “not irrational,” ante, at 17 (internal
quotation marks omitted). This deferential shift in phraseology enables the
Court to hold, against all common sense, that a costly urban-renewal project
whose stated purpose is a vague promise of new jobs and increased tax revenue,
but which is also suspiciously agreeable to the Pfizer Corporation, is for a
“public use.”
I cannot agree.
If such “economic development” takings are for a “public use,” any taking is,
and the Court has erased the Public Use Clause from our Constitution, as JUSTICE O’CONNOR powerfully argues
in dissent. Ante, at
2 KELO v. NEW LONDON
THOMAS, J., dissenting
1–2, 8–13. I do
not believe that this Court can eliminate liberties expressly enumerated in the
Constitution and therefore join her dissenting opinion. Regrettably, however,
the Court’s error runs deeper than this. Today’s decision is simply the latest
in a string of our cases construing the Public Use Clause to be a virtual
nullity, without the slightest nod to its original meaning. In myview, the
Public Use Clause, originally understood, is a meaningful limit on the
government’s eminent domain power. Our cases have strayed from the Clause’s original
meaning, and I would reconsider them.
I The Fifth
Amendment provides: “No person shall be held to answer for a capital,
orotherwise 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.” (Emphasisadded.)
It is the last of these liberties, the
Takings Clause, that is at issue in this case. In my view, it is “imperative
that the Court maintain absolute fidelity to” the Clause’s express limit on the
power of the government over the individual,no less than with every other
liberty expressly enumerated in the Fifth Amendment or the Bill of Rights more
generally. Shepard
v. United
States,
544 U. S. ___, ___ (2005)
(slip op., at 2) (THOMAS, J., concurring
in part and concurring in judgment) (internal quotation marks omitted).
3 Cite as: 545 U. S. ____ (2005)
THOMAS, J., dissenting
Though one
component of the protection provided by theTakings Clause is that the
government can take private property only if it provides “just compensation”
for the taking, the Takings Clause also prohibits the government from taking
property except “for public use.” Were it otherwise, the Takings Clause would
either be meaningless or empty. If the Public Use Clause served no function
other than to state that the government may take property through its eminent
domain power—for public or private uses—then it would be surplusage. See ante, at 3– 4 (O’CONNOR, J.,
dissenting); see also Marbury
v. Madison,
1
Cranch 137, 174 (1803) (“It cannot be presumedthat any clause in the
constitution is intended to be without effect”); Myers v. United
States,
272 U. S. 52, 151 (1926).
Alternatively, the Clause could distinguish those takings that require
compensation from those that do not. That interpretation, however, “would
permit private property to be taken or appropriated for private use without
any compensation whatever.” Cole v. La Grange, 113 U. S. 1, 8 (1885)
(interpreting same language in the Missouri Public Use Clause). In other words,
the Clause would require the government to compensate for takings done “for
public use,” leaving it free to take property for purely private uses without
the payment of compensation. This would contradict a bedrock principle well
established by the time of the founding: that all takings required thepayment
of compensation. 1 Blackstone 135; 2 J. Kent, Commentaries on American Law 275
(1827) (hereinafter Kent); J. Madison, for the National Property Gazette, (Mar.
27, 1792), in 14 Papers of James Madison 266, 267 (R. Rutland et al. eds. 1983)
(arguing that no property “shall be taken directly even for public
use without indemnification to the owner”).1 The Public Use Clause,
like the
—————— 1Some state
constitutions at the time of the founding lacked just compensation clauses and
took property even without providing com
4 KELO v. NEW LONDON THOMAS, J., dissenting
Just
Compensation Clause, is therefore an express limiton the government’s power of
eminent domain.
The most natural reading of the Clause is
that it allows the government to take property only if the government owns, or
the public has a legal right to use, the property, as opposed to taking it for
any public purpose or necessity whatsoever. At the time of the founding,
dictionaries primarily defined the noun “use” as “[t]he act of employing any
thing to any purpose.” 2 S. Johnson, A Dictionary ofthe English Language 2194
(4th ed. 1773) (hereinafter Johnson). The term “use,” moreover, “is from the
Latin utor, which means ‘to
use, make use of, avail one’s self of, employ, apply, enjoy, etc.” J. Lewis,
Law of Eminent Domain §165, p. 224, n. 4 (1888) (hereinafter Lewis). When the
government takes property and gives it to a private individual, and the public
has no right to use the property, it strains language to say that the public is
“employing” the property, regardless of the incidental benefits that might
accrue to the public from the private use. The term “public use,” then, means
that either the government or its citizens as a whole must actually “employ”
the taken property. See id., at 223
(reviewing found-ing-era dictionaries).
Granted, another sense of the word “use”
was broader in meaning, extending to “[c]onvenience” or “help,” or “[q]ualities
that make a thing proper for any purpose.” 2 Johnson 2194. Nevertheless, read
in context, the term “public use” possesses the narrower meaning. Elsewhere,
the Constitution twice employs the word “use,” both times in its narrower
sense. Claeys, Public-Use Limitations and Natural Property Rights, 2004 Mich.
St. L. Rev. 877, 897 ——————
pensation. See Lucas
v. South
Carolina Coastal Council, 505
U. S. 1003, 1056–1057
(1992) (Blackmun, J., dissenting). The Framers of the Fifth Amendment
apparently disagreed, for they expressly prohibited uncompensated takings, and
the Fifth Amendment was not incorporated against the States until much later.
See id., at 1028, n. 15.
5 Cite as: 545 U. S. ____ (2005) THOMAS, J., dissenting
(hereinafter Public Use Limitations).
Article 1, §10 provides that “the net Produce of all Duties and Imposts, laid
by any State on Imports or Exports, shall be for the Use of the Treasury of the
United States,” meaning the Treasury itself will control the taxes, not use it
to any beneficial end. And Article I, §8 grants Congress power “[t]o raiseand
support Armies, but no Appropriation of Money tothat Use shall be for a longer
Term than two Years.” Here again, “use” means “employed to raise and support Armies,”
not anything directed to achieving any military end. The same word in the
Public Use Clause should be interpreted to have the same meaning.
Tellingly, the
phrase “public use” contrasts with the very different phrase “general Welfare”
used elsewhere in the Constitution. See ibid. (“Congress shall
have Power To . . . provide for the common Defence and general Welfare of the United States”); preamble
(Constitution established “to promote the general Welfare”). The Framers would
have used some such broader term if they hadmeant the Public Use Clause to have
a similarly sweeping scope. Other founding-era documents made the contrast
between these two usages still more explicit. See Sales, Classical
Republicanism and the Fifth Amendment’s “Public Use” Requirement, 49 Duke L. J.
339, 368 (2000) (hereinafter Sales) (noting contrast between, on the one hand,
the term “public use” used by 6 of the first 13 States and, on the other, the
terms “public exigencies” employed in the Massachusetts Bill of Rights and the
Northwest Ordinance, and the term “public necessity” used in the Vermont
Constitution of 1786). The Constitution’s text, in short, suggests that the
Takings Clause authorizes the taking of property only if the public has a right
to employ it, not if the public realizes any conceivable benefit from the
taking.
The
Constitution’s common-law background reinforces this understanding. The common
law provided an express
6 KELO v. NEW LONDON THOMAS, J., dissenting
method of
eliminating uses of land that adversely impacted the public welfare: nuisance
law. Blackstone and Kent, for instance, both carefully distinguished the law of
nuisance from the power of eminent domain. Compare 1Blackstone 135 (noting
government’s power to take private property with compensation), with 3 id., at 216
(notingaction to remedy “public
. . .nuisances,
which affect the public and are an annoyance to all the king’s
subjects”);see also 2 Kent 274–276
(distinguishing the two). Blackstone rejected the idea that private property
could be taken solely for purposes of any public benefit. “So great . . . is
the regard of the law for private property,” he explained, “that it will not
authorize the least violation of it; no, not even for the general good of the
whole community.”1 Blackstone 135. He continued: “If a new road . . . were to
be made through the grounds of a private person, it might perhaps be
extensively beneficial to the public; but the law permits no man, or set of
men, to do this without the consent of the owner of the land.” Ibid. Only “bygiving
[the landowner] full indemnification” could the government take property, and
even then “[t]he public[was] now considered as an individual, treating with an
individual for an exchange.” Ibid. When the public took property, in other
words, it took it as an individual buying property from another typically
would: for one’s own use. The Public Use Clause, in short, embodied the
Framers’ understanding that property is a natural, fundamental right, prohibiting
the government from “tak[ing] propertyfrom A. and giv[ing] it to B.” Calder v. Bull, 3 Dall. 386, 388
(1798); see also Wilkinson
v. Leland,
2
Pet. 627, 658 (1829); Vanhorne’s
Lessee v.
Dorrance,
2
Dall. 304, 311 (CC Pa. 1795).
The public
purpose interpretation of the Public Use Clause also unnecessarily duplicates a
similar inquiry required by the Necessary and Proper Clause. The Takings
Clause is a prohibition, not a grant of power: The
7 Cite as: 545 U. S. ____ (2005)
THOMAS, J., dissenting
Constitution does
not expressly grant the Federal Government the power to take property for any
public purpose whatsoever. Instead, the Government may take property only when
necessary and proper to the exercise of an expressly enumerated power. See Kohl v. United
States, 91
U. S. 367, 371–372 (1876) (noting Federal Govern-ment’s power under the
Necessary and Proper Clause totake property “needed for forts, armories, and
arsenals, for navy-yards and light-houses, for custom-houses, post-offices, and
court-houses, and for other public uses”). For a law to be within the Necessary
and Proper Clause, as I have elsewhere explained, it must bear an “obvious, simple,
and direct relation” to an exercise of Congress’ enumerated powers, Sabri v. United
States, 541
U. S. 600, 613 (2004) (THOMAS, J., concurring
in judgment), and it must not “subvert basic principles of” constitutional
design, Gonzales
v. Raich,
ante, at
__ (THOMAS, J.,
dissenting). In other words, a taking is permissible under the Necessary and
Proper Clause only if it serves a valid public purpose. Interpreting the Public
Use Clause likewise to limit the government to take property only for
sufficiently public purposes replicates this inquiry. If this is all the Clause
means, it is, once again, surplusage. See supra, at 3. The
Clause is thus most naturally read to concern whether the property is used by
the public or the government, not whether the purpose of the taking is
legitimately public.
II Early American eminent domain practice largely bears out this
understanding of the Public Use Clause. This practice concerns state limits on
eminent domain power, not the Fifth Amendment, since it was not until the late
19th century that the Federal Government began to use the power of eminent
domain, and since the Takings Clause did not even arguably limit state power
until after the passage of the Fourteenth Amendment. See Note, The
8 KELO v. NEW LONDON THOMAS, J., dissenting
Public Use Limitation on Eminent Domain:
An Advance Requiem, 58 Yale L. J. 599, 599–600, and nn. 3–4 (1949); Barron
ex rel. Tiernan v.
Mayor
of Baltimore, 7
Pet. 243, 250–251 (1833) (holding the Takings Clause inapplicable to the States
of its own force). Nevertheless, several earlystate constitutions at the time
of the founding likewiselimited the power of eminent domain to “public uses.”
See Sales 367–369, and n. 137 (emphasis deleted). Their practices therefore
shed light on the original meaning of the same words contained in the Public
Use Clause.
States employed
the eminent domain power to providequintessentially public goods, such as
public roads, toll roads, ferries, canals, railroads, and public parks. Lewis
§§166, 168–171, 175, at 227–228, 234–241, 243. Thoughuse of the eminent domain
power was sparse at the time of the founding, many States did have so-called
Mill Acts, which authorized the owners of grist mills operated by water power
to flood upstream lands with the payment of compensation to the upstream
landowner. See, e.g.,
id.,
§178, at 245–246; Head
v. Amoskeag
Mfg. Co., 113
U.
S.
9, 16–19, and n. (1885). Those early grist mills “were regulated by law and
compelled to serve the public for a stipulated toll and in regular order,” and
therefore were actually used by the public. Lewis §178, at 246, and n. 3; see
also Head, supra, at 18–19. They
were common carriers— quasi-public entities. These were “public uses” in
thefullest sense of the word, because the public could legallyuse and benefit
from them equally. See Public Use Limitations 903 (common-carrier status
traditionally afforded to “private beneficiaries of a state franchise or
another form of state monopoly, or to companies that operated inconditions of
natural monopoly”).
To be sure, some
early state legislatures tested thelimits of their state-law eminent domain power.
Some States enacted statutes allowing the taking of property for the purpose of
building private roads. See Lewis §167, at
9 Cite as: 545 U. S. ____ (2005) THOMAS, J., dissenting
230. These
statutes were mixed; some required the private landowner to keep the road open
to the public, and others did not. See id., §167, at
230–234. Later in the 19th century, moreover, the Mill Acts were employed to
grant rights to private manufacturing plants, in additionto grist mills that
had common-carrier duties. See, e.g., M. Horwitz, The
Transformation of American Law 1780– 1860, pp. 51–52 (1977).
These early uses
of the eminent domain power are often cited as evidence for the broad “public
purpose” interpretation of the Public Use Clause, see, e.g.,
ante,
at 8, n. 8 (majority opinion); Brief for Respondents 30; Brief for American
Planning Assn. et al. as Amici
Curiae at
6–7, but in fact the constitutionality of these exercises of eminent domain
power under state public use restrictions was a hotly contested question in
state courts throughout the 19th and into the 20th century. Some courts
construed those clauses to authorize takings for public purposes, but others
adhered to the natural meaning of “public use.”2 As
—————— 2Compare ante, at 8, and n. 8
(majority opinion) (noting that some state courts upheld the validity of
applying the Mill Acts to private purposes and arguing that the “ ‘use by the
public’ test” “eroded over time”), with, e.g., Ryerson v. Brown, 35 Mich. 333,
338–339 (1877) (holding it “essential” to the constitutionality of a Mill Act
“that the statute should require the use to be public in fact; in other words,
that it should contain provisions entitling the public to accommodations”); Gaylord v. Sanitary
Dist. of Chicago,
204 Ill. 576, 581–584, 68 N. E. 522, 524 (1903) (same); Tyler v. Beacher, 44 Vt. 648,
652–656 (1871) (same); Sadler
v. Langham, 34 Ala. 311,
332–334 (1859) (striking down taking for purely private road and grist mill); Varner v. Martin, 21 W. Va. 534,
546–548, 556–557, 566–567 (1883) (grist mill and private road had to be open to
public for them to constitute public use); Harding v. Goodlett, 3 Yerg. 41, 53
(1832); Jacobs
v. Clearview
Water Supply Co.,
220 Pa. 388, 393–395, 69 A. 870, 872 (1908) (endorsing actual public use standard);
Minnesota
Canal & Power Co. v.
Koochiching
Co.,
97 Minn. 429, 449–451, 107 N. W. 405, 413 (1906) (same); Chesapeake
Stone Co. v.
Moreland,
126
Ky. 656, 663–667, 104
S. W. 762, 765 (Ct. App. 1907) (same);
Note, Public Use in Eminent Domain, 21 N. Y. U. L. Q. Rev. 285, 286, and n. 11
(1946) (calling the
10 KELO v. NEW LONDON THOMAS, J., dissenting
noted above, the
earliest Mill Acts were applied to entities with duties to remain open to the
public, and their later extension is not deeply probative of whether that subsequent
practice is consistent with the original meaning of the Public Use Clause. See McIntyre
v. Ohio
Elections Comm’n, 514
U.
S.
334, 370 (1995) (THOMAS, J., concurring
in judgment). At the time of the founding, “[b]usiness corporations were only
beginning to upset the old corporate model, in which the raison d’être of
chartered associations was their service to the public,” Horwitz, supra, at 49–50, so it
was natural to those who framed the first Public Use Clauses to think of mills
as inherently public entities. The disagreement among state courts, and state
legislatures’ attempts to circumvent public use limits on their eminent domain
power, cannot obscure that the Public Use Clause is most naturally read to
authorize takings for public use only if the government or the public actually
uses the taken property.
III Our current
Public Use Clause jurisprudence, as the Court notes, has rejected this natural
reading of the Clause. Ante, at 8–10. The
Court adopted its modern reading blindly, with little discussion of the
Clause’s history and original meaning, in two distinct lines of cases: first,
in cases adopting the “public purpose” interpretation of the Clause, and
second, in cases deferring to legislatures’ judgments regarding what
constitutes a valid public purpose. Those questionable cases converged in the
boundlessly broad and deferential conception of “public use” adopted by this
Court in Berman
v. Parker,
348 U. S. 26 (1954), and Hawaii
Housing Authority v.
Midkiff,
467
U. S. 229 (1984),
cases that take center stage in the Court’s opinion. See ante, 10–12. The
weakness of those
——————
actual public use standard the “majority view” and citing other cases).
11
Cite as: 545 U.
S.
____ (2005) THOMAS, J., dissenting
two lines of
cases, and consequently Berman
and Midkiff, fatally
undermines the doctrinal foundations of the Court’s decision. Today’s
questionable application of thesecases is further proof that the “public
purpose” standard isnot susceptible of principled application. This Court’s
reliance by rote on this standard is ill advised and should be reconsidered.
A As the Court notes, the “public purpose” interpretation of
the Public Use Clause stems from Fallbrook
Irrigation Dist. v. Bradley, 164 U. S.
112, 161–162 (1896). Ante, at
11. The issue in Bradley
was
whether a condemnation for purposes of constructing an irrigation ditch was for
a public use. 164 U.
S.,
at 161. This was a public use, Justice Peckham declared for the Court, because
“[t]o irrigate and thus to bring into possible cultivation these large masses
of otherwise worthless lands would seem to be a public purpose and a matter of
public interest, not confined to landowners, or even to any one section of the
State.” Ibid. That broad
statement was dictum, for the law under review also provided that “[a]ll
landowners in the district have the right to a proportionate share of
thewater.” Id., at 162. Thus,
the “public” did have the right to use the irrigation ditch because all
similarly situatedmembers of the public—those who owned lands irrigated by the
ditch–had a right to use it. The Court cited no authority for its dictum, and
did not discuss either the Public Use Clause’s original meaning or the
numerousauthorities that had adopted the “actual use” test (though it at least
acknowledged the conflict of authority in state courts, see id., at 158; supra, at 9, and n.
2). Instead, the Court reasoned that “[t]he use must be regarded as a public
use, or else it would seem to follow that no general scheme of irrigation can
be formed or carried into effect.” Bradley, supra, at 160–161.
This is no statement of con
12 KELO v. NEW LONDON
THOMAS, J., dissenting
stitutional principle: Whatever the
utility of irrigationdistricts or the merits of the Court’s view that another
rule would be “impractical given the diverse and always evolving needs of
society,” ante, at 8, the
Constitution does not embody those policy preferences any more than it“enact[s]
Mr. Herbert Spencer’s Social Statics.” Lochner v. New
York,
198 U. S. 45, 75 (1905)
(Holmes, J., dissenting); but see id., at 58–62
(Peckham, J., for the Court).
This Court’s
cases followed Bradley’s test with
little analysis. In Clark v. Nash, 198 U. S. 361 (1905)
(Peckham, J., for the Court), this Court relied on little more than a citation
to Bradley
in
upholding another condemnation for the purpose of laying an irrigation ditch.
198 U.
S.,
at 369–370. As in Bradley, use of the
“publicpurpose” test was unnecessary to the result the Court reached. The
government condemned the irrigation ditch for the purpose of ensuring access to
water in which “[o]ther land owners adjoining the defendant in error . . .
might share,” 198 U. S., at 370, and therefore Clark also involved a
condemnation for the purpose of ensuring access to a resource to which
similarly situated members of the public had a legal right of access. Likewise,
in Strickley
v. Highland
Boy Gold Mining Co., 200
U. S. 527 (1906), the Court upheld a condemnation establishing an aerial
right-of-way for a bucket line operated by a mining company, relying on little
more than Clark, see Strickley,
supra, at
531. This case, too, could have been disposed of on the narrower ground that
“the plaintiff [was] a carrierfor itself and others,” 200 U. S., at 531–532, and
therefore that the bucket line was legally open to the public. Instead, the
Court unnecessarily rested its decision on the “inadequacy of use by the
general public as a universaltest.” Id., at 531. This
Court’s cases quickly incorporatedthe public purpose standard set forth in Clark and Strickley
by
barren citation. See, e.g.,
Rindge Co. v.
County of Los
Angeles,
262 U. S. 700, 707 (1923);
Block
v. Hirsh, 256
13 Cite as: 545 U. S. ____ (2005)
THOMAS, J., dissenting
U. S. 135, 155
(1921); Mt.
Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U. S. 30, 32
(1916); O’Neill
v. Leamer,
239
U. S. 244, 253 (1915).
B A second line
of this Court’s cases also deviated from the Public Use Clause’s original
meaning by allowing legislatures to define the scope of valid “public uses.” United
States v.
Gettysburg
Electric R. Co., 160
U. S. 668 (1896), involved the question whether Congress’ decision to condemn
certain private land for the purpose of building battlefield memorials at
Gettysburg, Pennsylvania, was for a public use. Id., at 679–680.
Since the Federal Government was to use the lands in question, id., at 682, there
is no doubt that it was a public use under any reasonable standard.
Nonetheless, the Court, speaking through Justice Peckham, declared that “when
the legislature has declared the use or purpose to be a public one, its
judgment will be respected by the courts, unless the use be palpably without
reasonable foundation.” Id., at 680. As it
had with the “public purpose” dictum in Bradley, supra, the Court
quickly incorporated this dictum into its Public Use Clause cases with little
discussion. See, e.g.,
United States ex rel. TVA v. Welch, 327 U. S. 546, 552 (1946); Old
Dominion Land Co. v.
United
States, 269
U. S. 55, 66 (1925).There is no justification, however, for affording almost
insurmountable deference to legislative conclusions that a use serves a “public
use.” To begin with, a court owes no deference to a legislature’s judgment
concerning the quintessentially legal question of whether the government owns,
or the public has a legal right to use, the taken property. Even under the
“public purpose” interpretation, moreover, it is most implausible that the
Framers intended to defer to legislatures as to what satisfies the Public Use
Clause, uniquely among all the express provi
14 KELO v. NEW LONDON
THOMAS, J., dissenting
sions of the Bill of Rights. We would not
defer to a legisla-ture’s determination of the various circumstances that
establish, for example, when a search of a home would be reasonable, see, e.g.,
Payton v.
New
York, 445
U. S. 573, 589–590 (1980), or when a convicted double-murderer may be shackled
during a sentencing proceeding without on-the-record findings, see Deck v. Missouri,
544
U. S. ___ (2005), or when state law creates a property interest protected by
the Due Process Clause, see, e.g., Castle Rock v. Gonzales,
post, at
__; Board
of Regents of State Colleges v. Roth, 408 U. S. 564, 576 (1972); Goldberg
v. Kelly, 397 U. S. 254,
262–263 (1970).
Still worse, it
is backwards to adopt a searching standard of constitutional review for
nontraditional property interests, such as welfare benefits, see, e.g., Goldberg, supra, while deferring
to the legislature’s determination as to what constitutes a public use when it
exercises thepower of eminent domain, and thereby invades individuals’
traditional rights in real property. The Court has elsewhere recognized “the
overriding respect for the sanctity of the home that has been embedded in our
traditions since the origins of the Republic,” Payton, supra, at 601, when
the issue is only whether the government may search a home. Yet today the Court
tells us that we are not to “second-guess the City’s considered judgments,” ante, at 18, when the
issue is, instead, whether the government may take the infinitely more
intrusive step of tearing down petitioners’ homes. Something has gone seriously
awry with this Court’s interpretation of the Constitution. Though citizens are
safe from the government in their homes, the homes themselves are not. Once
one accepts, as the Court at least nominally does, ante, at 6, that the
Public Use Clause is a limit on the eminent domain power of the Federal
Government and the States, there is no justification for the almost complete
deference it grants to legislatures as to what satisfies it.
15 Cite as: 545 U. S. ____ (2005)
THOMAS, J., dissenting
C
These two misguided lines of precedent converged in Berman v. Parker, 348 U. S.
26 (1954), and Hawaii Housing Authority v. Midkiff, 467 U. S.
229 (1984). Relying on those lines of cases, the Court in Berman and Midkiff upheld condemnations for the
purposes of slum clearance and land redistribution, respectively. “Subject to
specific constitutional limitations,” Berman proclaimed,
“when thelegislature has spoken, the public interest has been declared in
terms well-nigh conclusive. In such cases the legislature, not the judiciary,
is the main guardian of thepublic needs to be served by social legislation.” 348
U. S., at 32. That reasoning was question begging, since the
question to be decided was whether the “specific constitutional limitation” of
the Public Use Clause prevented the taking of the appellant’s (concededly
“nonblighted”) department store. Id.,
at 31, 34. Berman also appeared toreason that any exercise by Congress of an
enumerated power (in this case, its plenary power over the District of Columbia)
was per se a “public use” under the FifthAmendment. Id., at 33. But the very point of the Public Use Clause is to
limit that power. See supra, at 3–4. More fundamentally, Berman and
Midkiff erred byequating the eminent domain
power with the police power of States. See Midkiff, 467
U. S., at 240 (“The ‘public use’ requirement is . . . coterminous
with the scope of a sover-eign’s police powers”); Berman, 348 U. S.,
at 32. Traditional uses of that regulatory power, such as the power to abate a
nuisance, required no compensation whatsoever, see Mugler v. Kansas, 123
U. S. 623, 668–669 (1887), in sharp contrast to the takings power,
which has always required compensation, see supra,
at 3, and n. 1. The question whether the State can take property using thepower
of eminent domain is therefore distinct from the question whether it can
regulate property pursuant to the police power. See, e.g., Lucas v. South
Carolina Coastal
16 KELO v. NEW LONDON
THOMAS, J., dissenting
Council, 505 U. S. 1003, 1014
(1992); Mugler, supra, at 668–669. In Berman, for example, if
the slums at issue were truly “blighted,” then state nuisance law, see, e.g.,
supra,
at 5–6; Lucas,
supra,
at 1029, not the power of eminent domain, would provide the appropriate remedy.
To construe the Public Use Clause to overlap with the States’ police power
conflates these two categories.3
The “public
purpose” test applied by Berman
and Midkiff
also
cannot be applied in principled manner. “When we depart from the natural import
of the term ‘public use,’ and substitute for the simple idea of a public
possession and occupation, that of public utility, public interest, common
benefit, general advantage or convenience . . . we are afloat without any
certain principle to guide us.” Bloodgood v. Mohawk
& Hudson R. Co.,
18 Wend. 9, 60– 61 (NY 1837) (opinion of Tracy, Sen.). Once one permitstakings
for public purposes in addition to public uses, no coherent principle limits
what could constitute a valid public use–at least, none beyond JUSTICE O’CONNOR’s (entirely
proper) appeal to the text of the Constitution itself. See ante, at 1–2, 8–13
(dissenting opinion). I share the Court’s skepticism about a public use
standard that requires courts to second-guess the policy wisdom of publicworks
projects. Ante, at 16–19. The
“public purpose” standard this Court has adopted, however, demands the
——————
3Some States also promoted the alienability of property by abolishing
the feudal “quit rent” system, i.e.,
long-term leases under which the proprietor reserved to himself the right to
perpetual payment of rents from his tenant. See Vance, The Quest for Tenure in
the United States, 33 Yale L. J. 248,
256–257, 260–263 (1923). In Hawaii Housing Authority
v. Midkiff, 467 U. S. 229
(1984), the Court cited those state policies favoring the alienability of land
as evidence that the government’s eminent domain power was similarly
expansive, see id., at 241–242, and
n. 5. But they were uses of the States’ regulatory power, not the takings
power, and therefore were irrelevant to the issue in Midkiff. This mismatch
underscores the error of conflating a State’s regulatory power with its taking
power.
17 Cite as: 545 U. S. ____ (2005) THOMAS, J., dissenting
use of such judgment, for the Court
concedes that thePublic Use Clause would forbid a purely private taking. Ante, at 7–8. It is
difficult to imagine how a court could find that a taking was purely private
except by determining that the taking did not, in fact, rationally advance the
public interest. Cf. ante, at 9–10 (O’CONNOR, J., dissenting)
(noting the complicated inquiry the Court’s test requires). The Court is
therefore wrong to criticize the“actual use” test as “difficult to administer.”
Ante, at 8. It is far
easier to analyze whether the government owns or the public has a legal right
to use the taken property thanto ask whether the taking has a “purely private
purpose”– unless the Court means to eliminate public use scrutiny of takings
entirely. Ante, at 7–8, 16–17.
Obliterating a provision of the Constitution, of course, guarantees that it
will not be misapplied.
For all these
reasons, I would revisit our Public Use Clause cases and consider returning to
the original meaning of the Public Use Clause: that the government may take
property only if it actually uses or gives the public a legal right to use the
property.
IV The
consequences of today’s decision are not difficult to predict, and promise to
be harmful. So-called “urban renewal” programs provide some compensation for
the properties they take, but no compensation is possible for the subjective
value of these lands to the individuals displaced and the indignity inflicted
by uprooting them from their homes. Allowing the government to take property
solely for public purposes is bad enough, but extending the concept of public
purpose to encompass any economically beneficial goal guarantees that these
losses will fall disproportionately on poor communities. Those communities are
not only systematically less likely to puttheir lands to the highest and best
social use, but are also
18 KELO v. NEW LONDON
THOMAS, J., dissenting
the least politically powerful. If ever
there were justification for intrusive judicial review of constitutional provisions
that protect “discrete and insular minorities,” United States v. Carolene
Products Co., 304
U. S. 144, 152, n. 4 (1938), surely that principle would apply with great
forceto the powerless groups and individuals the Public UseClause protects. The
deferential standard this Court has adopted for the Public Use Clause is
therefore deeply perverse. It encourages “those citizens with disproportionate
influence and power in the political pro- cess, including large corporations
and developmentfirms” to victimize the weak. Ante, at 11 (O’CONNOR, J.,
dissenting).
Those incentives
have made the legacy of this Court’s “public purpose” test an unhappy one. In
the 1950’s, no doubt emboldened in part by the expansive understanding of
“public use” this Court adopted in Berman, cities “rushed
to draw plans” for downtown development. B. Frieden & L. Sagalayn,
Downtown, Inc. How America Rebuilds Cities
17 (1989). “Of all the families displaced by urban renewal from 1949 through
1963, 63 percent of those whose race was known were nonwhite, and of these
families, 56 percent of nonwhites and 38 percent of whiteshad incomes low
enough to qualify for public housing, which, however, was seldom available to
them.” Id., at 28. Public
works projects in the 1950’s and 1960’s destroyed predominantly minority
communities in St.
Paul,
Minnesota, and Baltimore, Maryland. Id., at 28–29. In
1981, urban planners in Detroit, Michigan, uprooted the
largely “lower-income and elderly” Poletown neighborhood for thebenefit of the
General Motors Corporation. J. Wylie,Poletown: Community Betrayed 58 (1989).
Urban renewal projects have long been associated with the displacement of
blacks; “[i]n cities across the country, urban renewal came to be known as
‘Negro removal.’ ” Pritchett, The “Public Menace” of Blight: Urban Renewal and
the Private
19 Cite as: 545 U. S. ____ (2005) THOMAS, J., dissenting
Uses of Eminent
Domain, 21 Yale L. & Pol’y Rev. 1, 47 (2003). Over 97 percent of the
individuals forcibly removed from their homes by the “slum-clearance” project
upheld by this Court in Berman
were
black. 348 U.
S.,
at 30. Regrettably, the predictable consequence of the Court’s decision will be
to exacerbate these effects.
* * * The Court relies almost exclusively on this Court’s
prior cases to derive today’s far-reaching, and dangerous, result. See ante, at 8–12. But the principles this Court should employ to
dispose of this case are found in the Public Use Clause itself, not in Justice
Peckham’s high opinion of reclamation laws, see supra,
at 11. When faced with a clash of constitutional principle and a line of
unreasoned cases wholly divorced from the text, history, and structure of our
founding document, we should not hesitate to resolve the tension in favor of
the Constitution’s originalmeaning. For the reasons I have given, and for the
reasons given in JUSTICE O’CONNOR’s dissent, the conflict of principle raised by this
boundless use of the eminent domain power should be resolved in petitioners’
favor.would reverse the judgment of the Connecticut Supreme Court.