FINAL_FY14_Eminent-Domain-Report

Panelists’ Written Statements 41power to define public use as it sees fit. 8 Berman’s highly permissive approach was reaffirmed inHawaii Housing Authority v. Midkiff in 1984. 9Whatever its basis in precedent, Kelo was at odds with the text and original meaning of the FifthAmendment, which do not conflate “public use” with potential “public benefit,” instead limiting “publicuse” to cases of actual government ownership of condemned property or at least a legal right of accessby the public (as in the case of public utilities). 10 Kelo also placed undue faith in the willingness ofgovernment officials to protect the constitutional property rights of the poor and politically weak. Ashistorian and law professor James W. Ely, Jr. has written, “among all the guarantees of the Bill ofRights, only the public use limitation is singled out for heavy [judicial] deference” to the verygovernment officials whose abuses of power it is meant to constrain. 11 There is little sense inrecognizing a constitutional right for the purpose of curbing abuses of government power, and thenleaving the definition of that right up to the discretion of the very officials whose power the right issupposed to restrict.It should also be noted that the need to protect property rights against abusive state and localgovernments was one of the main reasons why the framers of the Fourteenth Amendment sought toapply the Bill of Rights to the states. Congressional supporters of the Amendment feared that southernstate governments would threaten the property rights of African Americans and those whites who hadsupported the Union against the Confederacy during the Civil War. 12 This objective cannot easily bereconciled with allowing those very same state governments to determine what qualifies as a public use,thereby giving them a blank check to expropriate the property of both African Americans and whiteloyalists. The right to private property was a central component of the “civil rights” that the framers ofthe Fourteenth Amendment sought to protect. 13Whether or not Kelo and Berman were correctly decided, their effect has been to eviscerate most federaljudicial oversight of the use of eminent domain. Even after Kelo, federal courts may strike down“pretextual” condemnations whose official rationale is a mere pretext “for the purpose of conferring a8 Berman, 348 U.S. at 32.9 Midkiff, 467 U.S. at 240-41.10 See James W. Ely, Jr., “Poor Relation” Once More: The Supreme Court and the Vanishing Rights of Property Owners,2005 CATO SUP. CT. REV. 39, 40-43 (describing early American jurists’ rejection of the idea that eminent domain can be usedto transfer property from one private party to another without giving the general public any right to use it). See also Eric R.Claeys, Public Use Limitations and Natural Property Rights, 2004 MICH .ST. L. REV. 877, 894-905 (2004) (symposium issue)(detailed discussion of limited eighteenth and nineteenth century conceptions of public use that banned most private-toprivatetakings).11 Id. at 62.12 AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 268-69 (1998).13 On the centrality of property rights in nineteenth century conceptions of civil rights, see, e.g., HAROLD HYMAN & WILLIAMWIECEK, EQUAL JUSTICE UNDER LAW: CONSTITUTIONAL DEVELOPMENT, 1835-75 395-97 (1982) (describing the right toproperty as one of the main elements of civil rights as conceived in the 1860s, along with the right to contract, the right tomarry, and the right of access to the courts); MARK A. GRABER, TRANSFORMING FREE SPEECH: THE AMBIGUOUS LEGACY OFCIVIL LIBERTARIANISM (1991) (describing how most nineteenth century jurists viewed property as a fundamental civil right).