Eychaner filed suit in federal court arguing, among other things, that the city’s taking of his property is not for a “public use” as the term was understood in 1791, when the states ratified the Fifth Amendment, or during the subsequent century of judicial interpretation. From the 1790s until the early 20th century, state courts took the lead on takings law and for the most part held the narrow view that “public use” meant ownership by, or access to, the public. Still, a minority of state courts during this period took the broad view that it means anything a legislature determines to be useful to the public.
In the early to mid-20th century, however, the Court’s takings jurisprudence transformed. In 1954, in Berman v. Parker, Justice William O. Douglas upheld the District of Columbia’s confiscation of non-blighted property as part of a broader anti-blight program, declaring that “when the legislature has spoken, the public interest has been declared in terms well nigh conclusive.” Translation: whether something is for a “public use” is to be determined by the legislature, and there are very few legal avenues to challenge the claim that a taking is for the “public use.”
Of course, if a legislature is free to define “public use” without a court’s exacting appraisal of its constitutionality, then, as Justice Clarence Thomas put it in his Kelo dissent, those words become essentially meaningless. This would be contrary to the Court’s longstanding view that all of the Constitution has actionable meaning, and that no words are “hortatory fluff,” as Justice Sandra Day O’Connor put it in her separate Kelo dissent. Berman should have been an outlier, but in 1984, in Hawaii Housing Authority v. Midkiff, the Court doubled down on the basic holding. Then, in Kelo, Justice John Paul Stevens, who later called it the “most unpopular opinion that any member of the Court wrote during” his 34-year tenure, misread precedent to uphold Berman and Midkiff, adding that A‑to‑B transfers are even permissible for the incredible “public use” of “economic development.”
Cato has filed an amicus brief urging the Supreme Court to take Eychaner’s case and reconsider Kelo. If a legislature’s definition of “public use” is “well nigh conclusive,” then the justification for a taking need not stop at reversing existing blight or promoting economic development, but may, as Chicago argues here, extend to the apparent danger of “future blight.” This is perilous terrain, and the slippery slope is steep. There are a lot of reasons legislatures might want your property, and if they can claim mere potential blight, then no one’s property is safe. Under Kelo, as long as the taking is not pretextual or completely arbitrary, then an eminent-domain action that is claimed to be for public use is acceptable, even though it’s just an unconstitutional A‑to‑B transfer. This is anathema to both the spirit and words of the Takings Clause, and counsels overturning Kelo before the misguided Berman and Midkiff precedents become even more dangerous.
