Debating the original meaning of “public use”

February 27

At the Originalism Blog, University of San Diego law professor Michael Ramsey has some thoughtful commentary on a recent presentation I gave on the original meaning of public use, which was based on a chapter of a book I am currently working on, tentatively entitled The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain. The Kelo decision reopened the longstanding debate over the meaning of “public use” under the Fifth Amendment of the Constitution. While most scholars and judges agree that the Fifth Amendment only allows government to condemn property if it is for a public use, the Kelo Court endorsed a broad definition of public use under which any taking qualifies so long as it might create some kind of benefit for the public. Thus, it allowed the condemnation of property for transfer from one private owner to another on the basis that the new owner might create more economic development for the community. The alternative, narrow interpretation of public use holds that a public use requires the condemned property to either actually be owned by the government or by a private owner that has a legal obligation to served the general public, such as a public utility.

In the chapter Ramsey criticizes, I argue that the narrow definition of public use best fits the original meaning of the Fifth Amendment, as understood both in 1791, when the Amendment was first enacted, and in 1868, when the Fourteenth Amendment made it applicable against state governments. Ramsey agrees with much of my argument, but ultimately rejects the conclusion:

As to federal takings, the Fifth Amendment’s text (“nor shall private property be taken for public use, without just compensation”) seems reasonably clear. First, the language seems to build in an assumption that private property could only be taken for public use. True, the text does not literally say that, but the contrary reading would be absurd (why require compensation for public use takings but allow uncompensated private use takings?). An assumption so evidently underlying the text seems to become part of the text, if the text is to be given its full context…. Second, “public use” seems on its face to require, well, “use” by the “public”: if the people (or the government as representative of the people) aren’t entitled to do things on or with the property, as is the case when the property is given to a private entity, the amendment is not satisfied. The fact that the public might benefit indirectly from the new private use (because, for example, it helps remedy a blighted area) does not make the “use” one by the public.

As Professor Somin recounts, most states had public use takings clauses paralleling the Fifth Amendment from the eighteenth century, and early practice seemed to conform to the obvious meaning of “public use……”

As Professor Somin further describes, later state cases diverged — some adopted a “narrow” view holding that public use meant use by the public, but others adopted a broader view that public use could be satisfied by indirect public benefits. The former appears to have been the majority view. But the problem remains what conclusion to draw from that, once we turn to the Fourteenth Amendment and state takings…..

I think it depends on what one thinks of the privileges or immunities clause [of the Fourteenth Amendment] (which is where I assume most originalists would find a federal constitutional limit on state takings). If the clause directly incorporated the text of the Fifth Amendment, then I think the result is clear….

On the other hand, if the clause only constitutionalized deeply rooted practices (having significant overlap with but no direct correspondence with the actual text of the federal rights), then I think Professor Somin’s claim is more problematic. The divided practice he identifies seems not to show a deeply rooted right, even if the “narrow” view commanded a majority….

In sum, this was an unusual paper in that it made me more skeptical of its claim than I had been before I read it. I don’t mean that as a criticism — actually it’s a tribute to Professor Somin’s careful research and forthright reporting of his results.

The disagreement between Ramsey and myself is a relatively narrow one. He recognizes that my conclusion would be correct if the Fourteenth Amendment actually “incorporates” the text of the Bill of Rights against the states, as opposed to merely “deeply rooted practices” of state governments. Most originalist scholars today believe that the Privileges or Immunities Clause of the Fourteenth Amendment applies all or nearly all of the Bill of Rights against the states, following the pioneering work of Akhil Amar and Michael Kent Curtis on this issue. While some originalists believe that incorporation was “selective” (potentially leaving out a few parts of the Bill of Rights which were not considered important enough to warrant incorporation), virtually all scholars who endorse incorporation at all conclude that the Takings Clause of the Fifth Amendment was one of the rights that was in fact incorporated. As Amar, among others, point out, it was among the rights specifically mentioned by leading framers of the Amendment, such as John Bingham.

Moreover, it is strange to interpret incorporation as only including those rights that were “deeply rooted” in the practice of all or the vast majority of state governments. The whole purpose of incorporation (and of the Fourteenth Amendment more generally) was to force states to change some of their deeply rooted practices. For example, the incorporation of the First Amendment’s Free Speech Clause was intended to force southern state governments to stop their longstanding policies of censoring abolitionist speech and speech advocating equal rights for African-Americans. Under Ramsey’s approach, the incorporation of the First Amendment would not include the a right to engage in abolitionist speech, because a significant minority of states had a longstanding practice of repressing such speech. Similarly, part of the purpose of incorporating the Takings Clause was to prevent states from abusing the property rights of African-Americans and southern whites who had supported the Union during the Civil War. Allowing states to take property for whatever reasons they want was incompatible with that objective.

Finally, I should note that the pattern of state supreme court decisions on public use is far from the only evidence I advance in my book chapter. I also show that the narrow definition was endorsed in most leading treatises of the era, such as that of Justice Thomas Cooley of the Michigan Supreme Court. This suggests that the narrow definition was understood to be correct by a majority of experts in the field. In addition, I give reasons why the narrow definition was more likely to be accepted by laypeople and ordinary citizens. The narrow definition is preferable because the broad definition renders the words “public use” in the Takings Clause redundant. Cooley and others recognized at the time that the broad definition would authorize virtually any taking transferring property to a private party, thereby enriching the new owner. As the Supreme Court of Ohio put it in 1884, “[t]he prosperity of each individual condues, in a certain sense, to the public welfare, but this fact is not a sufficient reason for taking other private property to increase the prosperity of individual men.” In the eighteenth and nineteenth centuries, as today, courts recognized a strong presumption against interpreting key phrases of the Constitution in a way that renders them superfluous. That is yet another strike against the broad interpretation of the original meaning of public use.

Even if I am correct about the original meaning of public use, that doesn’t necessarily resolve the debate over Kelo. Elsewhere in the book manuscript, I also criticize Kelo on the basis of several versions of living constitution theory, and argue that the decision fits the criteria set out by Supreme Court for overruling precedent. I look forward to continuing the discussion of Kelo and public use with Ramsey and other thoughtful commentators.

UPDATE: I should note that this chapter and the rest of The Grasping Hand are not yet publicly available, as the book probably will not be published until next year. But I intend to blog about it in greater detail closer to the time of publication. Stay tuned if you are interested in these issues!

UPDATE #2: Michael Ramsey comments on this post here:

I don’t think we disagree as much as he thinks we do. As he says, I agree that the Fifth Amendment bars private-use takings as a result of the original settled meaning of “public use.” The question is whether anything happened in the nineteenth century to unsettle that meaning. What I found especially interesting about his paper is that courts apparently did begin to allow private-use takings (premised on indirect public benefit) in the early- to mid-nineteenth century — much earlier than I had thought. My question (and I only meant to raise a question) is whether that is enough to cast doubt on the meaning of the Fourteenth Amendment as applied to takings.

After reading his post, I’m more clear that Professor Somin takes the view that the privileges or immunities clause directly adopts the textual right expressed in the Fifth Amendment (as it was understood in 1867-68). If that’s right, then I think he is on strong ground in saying that the adoption of a different meaning by a minority of courts probably isn’t enough to unsettle it (although I’d like to know more about the circumstances of those decisions and how they were received and defended). My main point, though, is that that’s not the only way to understand the privileges or immunities clause….

To be clear, the “deeply rooted” approach is not my approach (in the sense that I think it’s correct): I only think it is a plausible view of privileges or immunities that should be considered. But he makes some good points against it, and raises the important question of the extent to which the clause was supposed to change state practices.

I am glad to see that the differences between our views are smaller than they at first seemed. My book chapter assumes the correctness of the view that the Fifth Amendment (including the Takings Clause) was directly incorporated against the states by the Fourteenth Amendment. This is the dominant view among legal scholars (both originalist and nonoriginalist), and it has also been adopted by decades of Supreme Court precedent. On net, I think the 19th century state supreme court decisions on public use support the narrow interpretation, because a majority of them backed that view in applying their state constitutional public use clauses (which in most cases were identical to the federal one, and indeed copied from it).

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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Eugene Volokh · February 27