Blackstone once wrote “the law of the land…postpones even public necessity to
the sacred and inviolable rights of private property.”
– The Framers embodied that principle in the Constitution, allowing the gov’t to
take property not for ‘public necessity’ but instead for ‘public use’ defying this
understanding, the Court has replaced the Public Use Clause with a “Public
Purpose” Clause
– The Court cannot eliminate the liberties expressly enumerated in the Constitution,
and the Court has eliminated the Public Use Clause
– In its original understanding, the Public Use Clause was a powerful and
meaningful limit on the gov’ts eminent domain power.
– The most natural reading of the Clause is that it allows the gov’t to take property
only if the gov’t owns, or the public has a legal right to use, the property, as
opposed to taking it for any public purpose or necessity whatsoever. When the
gov’t takes property and gives it to a private individual, and the public has no
right to use the property, it strains the language to say that the public is
“employing the property”
– The phrase “public use” contrasts with “general Welfare” another term used in the
constitution. If the Framers and intended the Public Use Clause to be so
sweeping, they would have used a broader term. The Clause refers to 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 common law already provides for a method of eliminating uses of land that
adversely affects the public welfare: nuisance law. Blackstone: “So great is the
regard of the law for private property, that it will not authorize the least violation
of it; no not even for the general good of the whole community.” Only by giving
the landowner full indemnification can the gov’t take property for a public use.
– The public purpose interpretation of the PUC unnecessarily duplicate the
Necessary and Proper Clause. The Takings Clause is a prohibition, not a grant of
power. The Constitution does not expressly grant the Fed. gov’t the power to take
property for any public us. Instead, the gov’t may take property only when
necessary and proper to the exercise of an expressly enumerated power
– The Court has rejected the natural reading of the Takings Clause by adopting the
public purpose interpretation and by deferring to legislature’s judgments
regarding what constitutes a valid public purpose. Those cases, Berman and
Midkiff fatally undermine the doctrinal foundations of the Court’s decision.
– The public purpose test cannot be applied in a principled manner, there is no
guiding principle when public use is substituted for general advantage
– This case will lead to disastrous problems for poor communities. Such
communities are not only systematically less likely to put their lands to the
highest and best social use, but are also the least politically powerful. This new
version of the Public Use Clause will give disproportionate influence and power
to large corporations to victimize the weak. This has been seen with many
redevelopment plans. Low income, non white neighborhoods have been
*** Our nation was not built upon the idea of Jeremy Bentham “the greatest happiness
for the greatest number” utilitarianism***