Mark Kelman


The “strict” public use requirement, articulated by Justice Thomas in his canonical Kelo dissent and adopted by a number of states in the wake of the decision, would bar any taking unless the condemned property would be owned, post-condemnation, by a governmental entity or a common carrier and “employed” directly by the public. Though purporting to establish a bright line rule, the test is highly indeterminate. Among other problems, it is impossible to determine what public “ownership” means, particularly when private parties may be bound (contractually or in fact) to use state-seized property in particular ways; equally impossible to determine when property is truly employed by the public, given that some members of the public will benefit from nominally “public” property and others will not, because they lack either the interest or capacity to use the property.

More bothersome than the test’s indeterminacy is that it is grounded in a profound misunderstanding of the functional nature of takings. Condemnations (alongside conventional monetary taxes and regulations) are simply ways of mustering resources the state controls (directly, by taxing-and-spending or condemning-and-using or indirectly, by regulating-and-directing). Constitutional takings law distinguishes compensable from non-compensable governmental actions to ensure that this power to garner resources is exercised so that no one is singled out to contribute an unfair share to government projects. “Public use” doctrine, on the other hand, at core regulates the functional “spending” power. It attempts to limit the ways in which the resources garnered through condemnation, a quasi-tax, are expended, regulating whether these resources are used on adequately public, rather than inappropriately parochial, projects.

For a host of compelling reasons, courts do not scrutinize conventional spending or regulatory programs to guarantee that they are adequately “public.” Supporters of the strict view of the public use requirement offer no persuasive functional reasons to hold condemnations to a higher standard of public use than traditional taxation or regulation. When resources are garnered through eminent domain, the conceptually muddy problem of unwarranted parochialism is not clearly resolved or even functionally addressed by a strict public use doctrine.

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