The Public Use Clause: Constitutional Mandate or "Hortatory Fluff'?

Abstract

The principal failing of the Kelo decision is that it misreads the case law on which it purports to rely as a seminal precedent, and by its holding frustrates the usual mode of constitutional analysis. Ordinarily, one examines the limitations imposed by the constitutional provision in question, and juxtaposes them with the statute, regulation, or activity in issue, to determine if the latter is consistent with the former. Not so in eminent domain, at least not now. Under Kelo one must look to the statute in question to determine what it deems to be "public use," and then forego testing it against the pertinent language of the Constitution unless the condemnor's decision is so outlandish as to fail not just the test of rationality, but of being merely rationally related to the conceivable. Of course this is no constitutional standard because as generations of science fiction writers have demonstrated, anything can be conceived, and thus everything is "conceivable." The Court paid lip service to the idea that public benefits which are pretextual will not support a finding of "public use" within the meaning of the Fifth Amendment, but it offered no standards by which one may determine whether the asserted benefits are pretextual. The Supreme Court thus de facto relegated the assertedly legislative constitutional determination of what is "public use" to state legislatures and beyond that to local, unelected and thus unaccountable condemning bodies, in derogation of the familiar rule that the interpretation of the Constitution is a judicial, not a legislative task. Moreover, the problem is not so much what is contained in an enabling legislative enactment authorizing an application of the eminent domain power for a particular use, but how it is applied to specific facts by local municipal functionaries who, apart from not being legislators, are often not trained in the law, who serve local private interests, and who lack either the intent or the mandate to pursue the broad public interest, as opposed to the interest of the developer du jour and his political allies in city hall.