Although Kelo has been politically unpopular – even vilified – Somin notes that “a considerable majority of constitutional lawyers continue to believe that Kelo was properly decided.” It does what no other scholar had done before, at least in a book-length treatment of all state court decisions that interpreted the term “public usage” around 1868, when the provisions of the Fifth Amendment became applicable to states by virtue of the passage of the 14th Amendment. The preponderance of these decisions, both at the time of its founding and in 1868, supports what Somin calls a “narrow view” of public use. He concludes that most courts have authorized the expropriation of property only for the purpose of transfer to the government or a private entity that is “legally obligated to allow the general public to use the land in question, as in the case of a public utility” or ordinary carrier. Thus, the taking of private dwellings, as in the Kelo case, for the purpose of assembling land for commercial or industrial purposes would have been illegal. For “originalists” like Somin, the historical prevalence of “narrow-sightedness” has important implications for legal interpretation: it is solid evidence of the original meaning of the Fifth and Fourteenth Amendments, which judges should respect when interpreting the shooting clause. The courts have taken a much more respectful approach to “public use” since the early 20th century. But this has not always been the case. Examples of public uses include infrastructure and services such as public schools, utilities, parks, and transit operations. If you are involved in a major domain takeover and have doubts about whether your property will be taken for legal “public use”, it is recommended that you contact an OCA attorney or another attorney who has experience in important domain matters. If the goal of The Grasping Hand was to bring back the original meaning of “public use” of scientific and jurisprudential oblivion, Somin succeeded. Will the court admit its mistake and eventually overturn Kelo? We can only hope. Moreover, it is strange to interpret incorporation as encompassing only those rights that are “deeply rooted” in the practice of all or the vast majority of state governments. The purpose of incorporation (and the Fourteenth Amendment in general) was to force states to change some of their deep-rooted practices.
For example, the inclusion of the First Amendment`s free speech clause was intended to force Southern governments to end their longstanding policy of censorship of abolitionist speech and speech advocating equal rights for African Americans. Under Ramsey`s approach, the incorporation of the First Amendment would not include the right to engage in abolitionist speech, as a significant minority of states had a long-standing practice of suppressing such speech. Similarly, part of the purpose of including the Takeings Clause was to prevent states from abusing the property rights of African Americans and Southern whites who had supported the Union during the Civil War. Allowing States to take property for any reason was incompatible with that objective. This article was written by the Owners` Counsel of America for general information purposes only. It is designed to assist landowners by providing basic information about the “public use” clause of the Fifth Amendment of the U.S. Constitution, including how the meaning of the term “public use” has evolved over time. This article is not intended to be considered as legal advice or a substitute for consulting an experienced attorney for the field, company or property rights in the areas covered by this document. Definitions of all related terms can be found in the dictionary of key terms on the IBC website. Accordingly, public use is one of the two main factors used to assess the legality of a government withdrawal – the other is the adequacy of compensation. Withdrawals that are not “for public use” are not directly covered by the doctrine,[2] but such withdrawal may violate due process rights under the Fourteenth Amendment or other applicable laws.
[3] While I am correct about the original meaning of public usage, this does not necessarily resolve the debate about Kelo. Elsewhere in the manuscript of the book, I also criticize Kelo on the basis of several versions of the Living Constitution theory, arguing that the decision meets the criteria established by the Supreme Court for setting precedents. I look forward to continuing the discussion on Kelo and public use with Ramsey and other thoughtful commentators. The distinction between public use and public utility has created a doctrinally confused and highly controversial subset of the doctrine of public use. This controversy arose after the Supreme Court`s decision in Kelo v. City of New London (2005). In that decision, the Court upheld the precedent for economic development revenues set in Hawaii Housing Authority v. Midkiff and Berman v.Parker and authorized in a 5-4 decision that the transfer of private property to a private developer be effected. In the United States vs Gettysburg Electric Ry. Co., 160 U.S. 668 (1896), the Supreme Court ruled in 1896 that the seizure of the railroad for the historic preservation of the Gettysburg battlefield appeared to be “public use.” [1] On the Originalism blog, Michael Ramsey, a law professor at the University of San Diego, has a thoughtful comment on a recent presentation I gave on the original meaning of public use, based on a chapter in a book I`m currently working on, tentatively titled The Grasping Hand: Kelo v. City of New London and the Boundaries of the Significant Domain. The Kelo decision reopened the long-standing debate about the meaning of the term “public use” under the Fifth Amendment of the Constitution. While most academics and judges agree that the Fifth Amendment allows the government to condemn property only if it is for public use, the Kelo Court advocated a broad definition of public use, under which any extraction is permissible, as long as it could create some sort of benefit to the public. Thus, sentencing is the transfer of property from one private owner to another on the basis that the new owner could create increased economic development for the community.
The alternative and narrow interpretation of public use states that public use requires that the condemned property be effectively owned by the government, or that of a private owner legally required to serve the community, such as a utility company. “Nor should private property be taken for public use without fair compensation.” U.S. Constitution, Amendment V Over time, however, more and more states are beginning to take a broader view of the term, so public use has been associated with public purposes or public benefits. Think of stadiums, convention halls, museum complexes, and similar facilities and uses where the public gathers. Much of the previous research on “public use” and the Kelo decision itself mistakenly confuses pre-incorporation of the 14th Amendment`s Due Process Clause (which were often respectful of state governments) with cases that apply the Catch Clause itself.