Public Ruses

Document Type


Publication Date



The public use requirement of eminent domain law may be working its way back into the United States Constitution. To be sure, the words "public use" appear in the document-and in many state constitutions as well, but the federal provision applies to the states in any event-as one of the Fifth Amendment's limitations on the government's inherent power to take private property against the will of its owners. (The other limitation is that "just compensation" must be paid, of which more later.) Any taking of private property, the text suggests, must be for public use. Those words, however, have amounted to virtually nothing for over fifty years, thanks to a line of United States Supreme Court decisions giving unfettered deference to legislative judgments about what a public use might be. In Berman v. Parker,1 for example, the Court held that when Congress selects eminent domain as the means to accomplish some legitimate public end, the taking is presumed to be for a public use "in terms well-nigh conclusive."2 The facts in Berman suggest just how strained this reading of the public use limitation is, at least in terms of ordinary meaning. The project upheld in the case used eminent domain to condemn slum property and thereafter sell it to private entrepreneurs for redevelopment.3 Owners of the condemned lots complained that this made "the project a taking from one businessman for the benefit of another businessman,"4 a taking for a private rather than a public use. But the Court disagreed, holding that the words "public use" don't mean what they say, they mean "public purpose," and clearing blighted land is that.5 The Court took the same approach thirty years later in Hawaii Housing Authority v. Midkiff,6 where the condemnation action aimed at an alleged land oligopoly, not blight.7 The highest courts of many states have followed Berman and Midkiff with respect to the public use requirement in their own constitutions. Perhaps the leading example is the Michigan Supreme Court's decision in Poletown Neighborhood Council v. City of Detroit,8 approving Detroit's plan to condemn a residential neighborhood, clear it, and convey it to General Motors as a site for an assembly plant.9 Unlike the situation in Berman, the land in question was not blighted, but the court nevertheless deferred to the legislative judgment that the project, by giving a boost to the area's strained economy, would meet a public need, thus serve a public purpose, thus amount to a public use.10 "The benefit to a private interest," the court said of this deal for General Motors, "is merely incidental."11 Given a half century or more of decisions like these, it's easy to understand the lament that the public use limitation had come to amount to nothing.12 Yet suddenly-and just why is a question we leave aside here-signs of life have appeared, thanks to two recent cases, County of Wayne v. Hathcock13 and Kelo v. City of New London.14 The cases converged in terms of their facts-both arose from government programs to condemn unblighted land and convey it to private parties for development-but diverged in terms of their holdings. In Hathcock, the Michigan Supreme Court overruled its earlier decision in Poletown and took a new approach to the question of public use.15 In Kelo the Connecticut Supreme Court followed the conventional deferential view and upheld the program in question. Perhaps because of this sharp conflict, the United States Supreme Court has recently granted certiorari in the Kelo case.16 So, however unexpectedly, the subject of public use is back on the table, with a good chance of substantial change in the law across the country. Our aim here is to consider several paths that sensible reform might take, and select from them one that we regard, at least tentatively, as superior.