Kelo v. City of New London

[Justice Stevens delivered the opinion of the Court, joined by Kennedy, Souter, Ginsburg and Breyer, JJ. Kennedy, J., filed a concurring opinion. O’Connor, J., filed a dissenting opinion, joined by Rehnquist, C.J., and Scalia and Thomas, JJ. Thomas, J., filed a separate dissenting opinion. All four writings appear below. Omitted: the Reporter’s syllabus and counsel listing; Part II of the Court’s opinion; the greater part of Justice Thomas’s survey of founding-era and nineteenth-century practice at pp. 507–521; and most of the string citations. Footnotes are omitted except where set out and labeled. Editorial cuts are marked. Bracketed italics are editorial; everything else is verbatim.]

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.

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 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, respondent New London Development Corporation (NLDC), a private nonprofit entity established some years earlier to assist the City in planning economic development, was reactivated. In February 1998, 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 a series of neighborhood meetings and state-level review, the NLDC finalized an integrated development plan focused on 90 acres of the Fort Trumbull area.

[The Court describes the plan’s seven parcels at pp. 473–474: a waterfront conference hotel in a “small urban village” with restaurants, shopping and marinas; about 80 new residences and a site reserved for a U. S. Coast Guard Museum; at least 90,000 square feet of research and office space north of the Pfizer facility; support for the adjacent state park; a renovated marina and a pedestrian “riverwalk”; and further office, retail and water-dependent commercial uses.]

The NLDC intended the development plan to capitalize on the arrival of the Pfizer facility and the new commerce it was expected to attract. In addition to creating jobs, generating tax revenue, and helping to “build momentum for the revitalization of downtown New London,” 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, designated the NLDC as its development agent, and authorized it to purchase property or to acquire property by exercising eminent domain in the City’s name. The NLDC successfully negotiated the purchase of most of the real estate in the 90-acre area, but its negotiations with petitioners failed. As a consequence, in November 2000, the NLDC initiated the condemnation proceedings that gave rise to this case.

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. In all, the nine petitioners own 15 properties in Fort Trumbull — 4 in parcel 3 of the development plan and 11 in parcel 4A. There is no allegation that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area.

In December 2000, petitioners brought this action in the New London Superior Court, claiming 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 enjoined the taking of the properties in parcel 4A (park or marina support) but denied relief as to those in parcel 3 (office space).

[On cross-appeals the Supreme Court of Connecticut held, over a dissent, that all of the City’s proposed takings were valid: they were authorized by the State’s municipal development statute, which treats the taking of land, even developed land, as part of an economic development project as a “public use”; and, under Midkiff and Berman, such economic development qualified as a valid public use. The three dissenters would have imposed a “heightened” standard of review and found all the takings unconstitutional for want of “clear and convincing evidence” that the economic benefits would come to pass.]

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.

[Part II, which addresses matters of state law and the scope of the question presented, is omitted.]

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 common-carrier duties is a familiar example. Neither of these propositions 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”). 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. The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case. Therefore, as was true of the statute challenged in Midkiff, 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 is planning 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 that condemned property be put into use for the general public.” Id., at 244. Indeed, while many state courts in the mid-19th century endorsed “use by the public” as the proper 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?), but it proved to be impractical given the diverse and always evolving needs of society. Accordingly, when this 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.” 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 by the general public as a universal test.” Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527, 531 (1906). We have repeatedly and consistently rejected that narrow test ever since.

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 that concept broadly, reflecting our longstanding policy of deference 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 the area’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 would be leased or sold to private parties for 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. 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,” and explaining that “community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis—lot by lot, building by building.” 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 values it represents are spiritual as well as physical, aesthetic 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 well as clean, well balanced as well as carefully patrolled… . 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.” Reaffirming Berman’s deferential approach, we concluded that the State’s purpose of eliminating the “social and economic evils of a land oligopoly” qualified as a valid public use, and rejected the contention that the immediate transfer of the properties to private individuals 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.

[The Court adds a third case, Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984), decided the same Term “in a purely economic context,” upholding pesticide data-sharing provisions whose “most direct beneficiaries” were subsequent applicants, because Congress believed sparing them the cost of research eliminated a significant barrier to entry.]

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. For more than a century, our public use jurisprudence 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 to justify 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, 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. 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. 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 we emphasized the importance of those industries to the welfare of the States in question; in Berman, we endorsed the purpose of transforming a blighted area into a “well-balanced” community; in Midkiff, we upheld the interest in breaking up a land oligopoly. 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 development from our traditionally broad understanding of public purpose.

Petitioners contend that using eminent domain for economic 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. The owner of the department store in Berman objected to “taking from one businessman for the benefit of another businessman,” referring to the fact that under the redevelopment plan land would be leased or sold to private developers. 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 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 33–34.

[Footnote 16, answering the principal dissent:]

Nor 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 501 (dissenting opinion). There was nothing “harmful” about the nonblighted department store at issue in Berman; nothing “harmful” about the lands at issue in the mining and agriculture cases; and certainly nothing “harmful” about the trade secrets in Monsanto. In each case, the public purpose we upheld depended on a private party’s future use of the concededly nonharmful property that was taken. By focusing on a property’s future use, as opposed to its past use, our cases are faithful to the text of the Takings Clause.

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, the hypothetical cases posited by petitioners can be confronted if and when they arise.

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 cases make clear that empirical debates over the wisdom of takings—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 242–243. Indeed, earlier this Term we explained why similar practical concerns undermined the use of the “substantially advances” formula in our regulatory takings doctrine. See Lingle v. Chevron U. S. A. Inc., 544 U. S. 528, 544 (2005). The disadvantages of a heightened form of review are especially pronounced in this type of case. Orderly implementation of a comprehensive redevelopment plan obviously requires that the legal rights of all interested parties be established before new construction can be commenced. A constitutional rule that required postponement of judicial approval of every condemnation until the likelihood of the plan’s success had been assured would impose a significant impediment to the successful consummation 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 condemnations may entail, notwithstanding the payment of just compensation. 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, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. 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 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.

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[Justice Kennedy, concurring. He joined the opinion of the Court in full and wrote for himself alone. Nearly entire.]

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 as long as it is “rationally related to a conceivable public purpose.” Midkiff, 467 U. S., at 241. This deferential standard echoes the rational-basis test used to review economic regulation under the Due Process and Equal Protection Clauses. 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, and with 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 classification that is clearly intended to injure a particular class of private parties, with only incidental or pretextual public justifications. 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.”

A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government’s actions were reasonable and intended to serve a public purpose. [The trial court here weighed testimony from government officials and corporate officers, documentary evidence of their communications, the substantial commitment of public funds made before most private beneficiaries were known, and the selection of a developer from a group of applicants rather than a transferee picked out beforehand.] 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.” 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.

My agreement with the Court that a presumption of invalidity is not warranted for economic development takings in general does not foreclose the possibility that a more stringent 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 of invalidity is warranted under the Public Use Clause. This demanding level of scrutiny, however, is not required simply because the purpose of the taking is economic development.

This taking occurred in the context of a comprehensive development plan meant to address a serious citywide depression, and the projected economic benefits of the project cannot be characterized as de minimis. The identities of most of the private beneficiaries were unknown at the time the city formulated its plans. 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.

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[Justice O’Connor, dissenting, joined by Rehnquist, C.J., and Scalia and Thomas, JJ. The principal dissent, pp. 494–505, is reproduced nearly entire.]

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).

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 who will 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 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. 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.

[The NLDC, she notes, “is a private, nonprofit corporation… . It is not elected by popular vote, and its directors and employees are privately appointed.” Parcel 3 is slated for research and office space “as a market develops for such space”; Parcel 4A is slated, “mysteriously,” for “‘park support’” — at oral argument counsel conceded the vagueness of the use and offered that the parcel might eventually be used for parking.]

Petitioners are not holdouts; they do not seek increased compensation, and none is opposed to new development in the area. Theirs is an objection in principle: They claim that 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 use that 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 imposes “two distinct conditions on the exercise of eminent domain: ‘[T]he taking must be for a “public use” and “just compensation” must be paid to the owner.’” Together these limitations “ensure stable 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.” 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.

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 sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff. An external, judicial check, however limited, is necessary if this constraint on government power is to retain any meaning.

Our cases have generally identified three categories of takings that comply with the public use requirement. Two are relatively straightforward and uncontroversial. First, the sovereign may transfer private property to public ownership—such as for a road, a hospital, or a military base. 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. 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.

This case returns us for the first time in over 20 years to the hard question of when a purportedly “public purpose” taking meets the public use requirement. It presents an 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 upheld takings within a blighted neighborhood of Washington, D. C. The neighborhood had so deteriorated that, for example, 64.3% of its dwellings were beyond repair. Congress had determined that it 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. 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.

In Midkiff, we upheld a land condemnation scheme in Hawaii whereby title 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. The Hawaii Legislature had concluded that the oligopoly was “skewing the State’s residential fee simple market, inflating land prices, and injuring the public tranquility and welfare.”

Yet for all their 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 use requirement; it would serve no legitimate purpose of government and would thus be void.” Midkiff, 467 U. S., at 245. 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 “an extremely narrow” one.

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. 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 esthetic 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 private party to another constitutional, then the words “for public use” do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.

[She traces the result in part to “errant language” in Berman and Midkiff equating the public use requirement with the scope of the police power — language unnecessary to those holdings, because the takings there were within the police power but also for “public use” for the reasons she has 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. 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. Whatever the details of Justice Kennedy’s as-yet-undisclosed test, it is difficult to envision anyone but 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: any boon for Pfizer or the plan’s developer is difficult to disaggregate from the promised public gains in taxes and jobs.

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 the taking in the first place? 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’s opinion. 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. 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 shopping 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 Agency, 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. 445, 684 N. W. 2d 765 (2004).

The Court also puts special emphasis on facts peculiar to this case: the plan’s relatively careful deliberative process; its multipart, integrated character; its array of incidental benefits; the legislative determination that New London is a depressed municipality. Justice Kennedy, too, takes great comfort in these facts. 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, 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 489. 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 imagine unconstitutional transfers from A to B. Those decisions endorsed government intervention when private property use 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, “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.”

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 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.”

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.

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[Justice Thomas, dissenting. He wrote for himself alone, and also joined Justice O’Connor’s dissent. Edited more tightly than the principal dissent; the greater part of his survey of founding-era and nineteenth-century practice at pp. 507–521 is omitted.]

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.” 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 (or perhaps the “Diverse and Always Evolving Needs of Society” Clause), a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational.” 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. 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 my view, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power, and I would reconsider our cases.

I

Though one component of the protection provided by the Takings Clause is that the government can take private property only if it provides “just compensation,” the Takings Clause also prohibits the government from taking property except “for public use.” Were it otherwise, the 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.

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.” 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.

[He supports the narrower reading from the Constitution’s other uses of the word — the “Use of the Treasury” in Article I, § 10, and the appropriation “to that Use” for the Armies in Article I, § 8 — and contrasts “public use” with the very different phrase “general Welfare” used elsewhere in the document. Parts II and III, pp. 510–521, survey founding-era and nineteenth-century practice and this Court’s departure from the “actual use” test; they are omitted. He returns at p. 521 to administrability.]

The Court is therefore wrong to criticize the “actual use” test as “difficult to administer.” It is far easier to analyze whether the government owns or the public has a legal right to use the taken property than to ask whether the taking has a “purely private purpose”—unless the Court means to eliminate public use scrutiny of takings entirely. 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 put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities,” surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted is therefore deeply perverse. It encourages “those citizens with disproportionate influence and power in the political process, including large corporations and development firms,” to victimize the weak.

Those incentives have made the legacy of this Court’s “public purpose” test an unhappy one. “Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite.” 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.’” Over 97 percent of the individuals forcibly removed from their homes by the “slum-clearance” project upheld by this Court in Berman were black. Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects.

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 original meaning. 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. I would reverse the judgment of the Connecticut Supreme Court.

Notes & Questions

1. Big picture — the Takings Clause has two halves, and this is the other one. Everything else in this module asks whether a taking has occurred, so that compensation is owed. Kelo assumes the taking and asks the prior question the text puts first: private property shall not be taken for public use without just compensation. If “public use” means only what its words appear to mean — use by the public — then a great deal of American land-assembly practice is unconstitutional no matter how much is paid. The Court holds it does not mean that. It means public purpose, the legislature is owed deference in identifying one, and an integrated economic-development plan qualifies. Read the case as the endpoint of a line rather than a bolt from the blue: Berman let the District of Columbia condemn a department store that was not itself blighted as part of a plan for a blighted area, and Midkiff let Hawaii transfer fee title from lessors to lessees to break up a land oligopoly. Neither taking put the land to public use in any ordinary sense. The interesting question is therefore not whether Kelo departed from precedent — it plainly did not — but why a decision that follows settled law so closely produced the most sustained popular backlash of any modern takings case, and what a court should do with that fact. Hold that question until note 5, because the Court itself answers it, at p. 489, in the passage that turned out to matter more than the holding.

2. Raw specific knowledge — three propositions and a line-up that is not what people remember. From the opinion: (a) the Court rejects “use by the general public” as the test, and explains when and why that formulation was abandoned as impractical; (b) the standard is a public purpose, and the Court will not second-guess the City’s determination that its carefully considered, integrated development plan serves one; (c) the Court refuses two bright-line rules — it will not hold economic development categorically outside the public-use requirement, and it will not require case-by-case reasonable certainty that the projected benefits will materialise. Be able to say why (c) is doing independent work: a rule that a taking fails if the promised jobs never appear would convert every condemnation into a trial about forecasting. Then the line-up, which students routinely misstate: 5–4, Stevens for the Court with Kennedy, Souter, Ginsburg and Breyer; Kennedy also writing separately; O’Connor dissenting with Rehnquist, C.J., Scalia and Thomas; Thomas dissenting separately as well. Kennedy is in the majority — his concurrence is not a vote against the outcome, and reading it as one wrecks the analysis in note 4.

3. Practical application — three condemnations, and the one Kennedy would stop. For each, state the result under the majority, under Kennedy’s concurrence, and under O’Connor’s dissent, and identify the fact that changes the answer. (a) A city condemns thirty parcels, none blighted, under a plan adopted after eighteen months of study, to assemble a site for a research campus that a named pharmaceutical company has said it wants nearby. (b) A city condemns one parcel, on the request of an adjoining developer who drafted the redevelopment plan and stands to acquire the land, with the plan adopted the same month. (c) A city condemns a block of sound housing and transfers it to a private university that has promised nothing in writing. Then do the drafting: you are city counsel and you want (b) upheld. Rewrite the process — not the outcome — so that it survives. Your answer should end up describing, fairly precisely, the difference between a taking that serves a public purpose and one that is a pretext for a private benefit, and that is exactly the category Justice Kennedy carves out. Say what evidence a court would look for, and who would have the burden.

4. Attack the reasoning — O’Connor’s distinction, and whether the majority has an answer. O’Connor does not argue that Berman and Midkiff were wrongly decided. She argues that they are being misread. In each, she says, the pre-condemnation use of the property was itself causing the harm — blight in Berman, oligopoly in Midkiff — so that taking the property removed a public harm rather than merely producing a public benefit. Susette Kelo’s house was doing nothing to anybody. On her reading, the majority erases the harm-removal limit and, with it, any limit at all: “nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” So: (a) Is the harm/benefit line she relies on available to her? It is the same distinction Lucas rejected as unworkable in the regulatory-takings context, two readings ago, and for reasons that seem to transfer. Can it be sound in one setting and not the other? Make the best case that it can. (b) Her rule has a distributive premise worth stating: because condemnation transfers property to those better able to use it profitably, the burden falls predictably on owners with the least political power — which is Thomas’s point too, from a different direction. Is that an argument about the meaning of “public use,” or an argument about how legislatures behave? Should it matter which? (c) Thomas would return to the original meaning: “public use” meant use by the public, and the Court’s “public purpose” gloss is not interpretation but replacement. Take his historical claim seriously and then ask the practical question — what happens to railroads, canals, mill acts, urban renewal and every land assembly of the last century? An originalism that invalidates all of them is either very brave or has an unstated doctrine of reliance. Which does he have?

5. Creative thinking — the Court’s own escape hatch, and what happened when it was used. At p. 489 the majority says, in terms, that nothing in its opinion precludes any State from placing further restrictions on its exercise of the takings power — that States are free, as many already were, to impose public-use requirements stricter than the federal baseline. That sentence is the most consequential thing in the case. Within a few years of the decision the great majority of States had amended their eminent-domain law by statute or constitutional amendment, most of them to restrict or forbid condemnation for economic development. Meanwhile the Fort Trumbull project was never built; the pharmaceutical company that was to anchor it left New London, and for years the condemned land sat vacant. Two exercises. (a) Federalism as remedy. The Court effectively told the losers to go to their legislatures, and the losers went and won. Is that a vindication of the decision — the political process correcting a policy the Constitution does not forbid — or a demonstration that the Court read the constitutional provision so thinly that it had to hand the work to someone else? Argue it both ways in a paragraph each, and notice that your answer probably tracks a prior view about judicially enforceable limits generally. (b) Draft the amendment. Write the state constitutional provision you would have proposed to Connecticut in 2006, in no more than three sentences. It must forbid the Kelo taking, permit Berman, permit the condemnation of a genuinely blighted block, and not be gamed by a legislature that can define “blight.” Then find the loophole in your own draft — there is one — and say whether you can close it without also forbidding the highway.