Original Meaning of 'Public Use'

If such "economic development" takings are for a "public use," any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O'Connor powerfully argues in dissent. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court's error runs deeper than this. Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. Our cases have strayed from that Clause's original meaning, and I would reconsider them....

The most natural meaning of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever. At the time of the founding, dictionaries primarily defined the noun "use" as "the act of employing any thing to any purpose" (S. Johnson, A Dictionary of the English Language). The term "use," moreover, "is from the Latin utor, which means 'to use, make use of, avail one's self of, employ, apply, enjoy, etc." (J. Lewis, Law of Eminent Domain). When the government takes property and gives it to a private individual, and the public has no right to use the property, it strains the language to say that the public is "employing" the property, regardless of the incidental benefits that might accrue to the public from the private use. The term "public use," then, means that either the government or its citizens as a whole must actually "employ" the taken property. ...

I would revisit our Public Use Clause cases and consider returning to the original meaning of the Public Use Clause: that the government may take property only if it actually gives the public a legal right to use the property.

-Justice Clarence Thomas, dissenting in Kelo v, New London

Copyright Human Events Publishing, Inc. Jul 4, 2005
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