What's the "Use"?

The Fifth Amendment of the U.S. Constitution forbids that "private property be taken for public use without just compensation." But what constitutes "public use"? The Supreme Court stands ready to decide that question via the case of Kelo, et al. v. New London, Conn., et al., 843 A.2d 500 (Conn. 2004), cert. granted, __ U.S. __, 125 S.Ct. 27 (Sept. 28, 2004).

In Kelo, as in many other such controversial cases, government authorities want to seize private homes not to build a park or highway, but rather to hand over the property to other private parties. The government thus serves merely as an intermediary—sort of like a real estate agent waving a gun. The city of New London means well, of course. It argues that certain of its citizens, by refusing to sell their homes, stand in the way of private development that will lure richer residents and raise more taxes. Hence the question certified in Kelo: "What protection does the Fifth Amendment's public use requirement provide for individuals whose property is being condemned, not to eliminate slums or blight, but for the sole purpose of 'economic development' that will perhaps increase tax revenues and improve the local economy?"

Admittedly, I don't specialize in Fifth Amendment law. I'm more of a Third Amendment kind of guy. Still, though, I cannot but think that the Supreme Court will strike down the "economic development" rationale for takings. I don't say that only because the very able attorneys of the Institute for Justice represent the homeowners in Kelo (though that certainly helps the odds). I say that because I think the Supreme Court must recognize that "public use" will have no meaning at all if government authorities can justify takings on the basis mere speculations about "economic development."

But one thing troubles me. What can those who criticize the "economic development" rationale for takings offer by way of an alternative? Suppose, for instance, that a city takes private property for a park. Can the city never thereafter sell that property to a private party? Surely not. What, then, prevents a city from taking the properties at issue in Kelo, holding them as vacant lots for a year, and then transferring them to private developers? That question will surely arise in Kelo's oral arguments.

Allow me a stab at an answer. If public use means anything, it must mean more than simply that government officials take title to private property that they take. Moreover, it must mean more than that they simply hold onto that property for some period of time. The public gets no "use" out of a vacant lot. Rather, the Fifth Amendment's "public use" requirement means that government officials must actually turn taken property into a public park, a public highway, a government office, or similar facility dedicated to public purposes.

That requirement satisfies both the plain language and the policies of the Fifth Amendment. I won't belabor the language side of the argument. As I noted, "use" in "public use" has to mean something. I thus argue that it means not mere "welfare" or "benefit" but rather "function" or "employment."

On the policy side, understanding "public use" as "public function" puts a necessary brake on using the Fifth to force transfers between private parties. Government officials must remove property from the tax rolls, even if only for a few years. That alone will give them pause. That government officials will in most cases have to improve taken property to make it suitable for public functions will also curb inappropriate takings. Once officials have had a school built on taken property, for instance, they will not lightly sell it to Costco. Furthermore, knowing that it takes time even to build merely a public park, Costco will no longer approach cities asking that they use eminent domain to shortcut all that bother with consensual and wholly private real estate transactions.

Statists will counter that my reading of "public use" puts sharp constraints on taking. Right! That shows the argument's virtue. Sharp constraints equate to clear and real constraints. As things stand now, takings law imposes only soft and fluffy limits on government officials. Citizens don't stand a chance in that sort of legal pillow fight. They need legal swords to fend off state power. Reading "public use" to mean "public function" will give the Fifth Amendment just the sort of edge that it requires.