Justice Clarence Thomas’ scorching dissent in Kelo, the Supreme Court’s case on eminent domain, is worth a closer look. As those who have been following the issue know, the takings clause of the U.S. Constitution reads, “Nor shall private property be taken for public use, without just compensation.” It’s long been understood that taking private property out of one person’s hands and putting it into the hands of another, without “a public use” justification, is unconstitutional. But the meaning of “public use” remains a topic of debate. The Supreme Court’s 5-4 ruling in Kelo—that economic development is sufficient justification to invoke eminent domain— rests on a long history of court cases in which the definition of “public use” has been something along the lines of “public benefit.”
Thomas argues that if the framers had really intended the powers of eminent domain to be used for “public benefit” rather than “public use”, they would have said so. In many founding-era documents, Thomas writes, care was taken to distinguish primarily between “general welfare” and “public use,” with general welfare suggesting the equivalent of “public benefit.” The fact that the frames did not use this phrasing in the takings clause, Thomas believes, is a sure indication that the more literal definition of “public use” is exactly what they intended.
Early eminent domain cases bear this philosophy out. But in 1896 in Fallbrook Irrigation Dist. Vs. Bradley, the term “public purpose” was introduced into the vernacular, to justify the condemnation of private property in order to build an irrigation ditch. Introducing the term, Thomas argues, was unnecessary: the presiding justices themselves had already noted that “all landowners have the right to a proportionate share of the water,” and Justice Peckham had declared the condemnation was concededly for a direct public use. As a result, this set a precedent the far broader definition of “public use” as “public benefit” that rules the courts today.
Thomas also contends that another common practice, that of deferring decisions of what justifies “public use” to legislators, is ultimately baseless as well. In the case of United States vs. Gettysburg Electric R. Co. (1896) in which the Federal government sought to take land to build the Gettysburg Memorial—another obvious example of public use—the Court ruled, “When the legislature has declared the use or purpose to be a public one, its judgment will be respected by the courts, unless the use be palpably without reasonable foundation.” Thomas argues that the Bill of Rights says nothing about deference to legislatures, and that none of the bill’s other fundamental rights have ever been granted such privilege.
With obvious distaste, he concludes:
The court relies almost exclusively on this Court’s prior cases to derive today’s far reaching, and dangerous result… but the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham’s high opinion of reclamation laws… When faced with a clash of constitutional principles 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.