O’Connor Dissent:
– Calder v. Bull “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.
– 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
– Though considerable deference is given to legislature’s determinations about what
governmental activities will advantage the public, if the political branches are the
sole arbiters of the public-private distinction, the Public Use Clause would
amount to little more than hortatory fluff. A judicial check, however limited is
necessary to constrain gov’t power.
– There are three categories of takings that comply to the public use requirement:
1. the sovereign may transfer private property to public ownership (road,
hospital, military base)
2. the sovereign may transfer private property to private parties, often
common carriers, who make the property available for the public’s use, (a
railroad, public utility, stadium)
3. In some circumstances, takings that serve a public purpose also satisfy the
Constitution, even if the property is destined for a subsequent private use
– This case is different from Berman, where 64.3% of the dwellings were beyond
repair and the neighborhood had become injurious to the public safety, health, and
welfare. Even though a non blighted building was taken, because the entire
neighborhood was deemed blighted by Congress, the court did not second guess.
In Midkiff, half the land in Hawaii was owned by only 72 land owners. The
tranquility and welfare of the public had been sacrificed and was necessary to
redistribute title. Both these cases held to the bedrock principle that “ A purely
private taking could not withstand the scrutiny of the public use requirement; it
would serve no legitimate purpose of gov’t and would thus be void, and therefore
the courts were reserved a role in reviewing a legislature’s judgment of what
constitutes a public use
– Both those cases dealt with targeted property that inflicted affirmative harm on
society. The takings directly achieved a public benefit, and thus did not matter
that the property was turned over for private use. Here, the City does not claim
that P’s well maintained homes are a source of any social harm, indeed, many of
the suggested changes are harmful for society.
– This decision leads to two limitations:
a) The role of the 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
b) The logic is redundant to the Due Process Clause
– Turning to the states is an abdication of the Court’s responsibility. States play an
important function, but compensating for the refusal of the Court to enforce the
Federal Constitution is not one of these functions.