Kelo and Precedent, Ex Ante

I just finished up helping Professor Merrill with an amicus brief for the eminent domain case - Kelo v. City of New London before the U.S. Supreme Court (docket no. 04-108). The brief was in support of respondents (city). I actually assumed my professor came out the other way on the case, seeing that he is a federalist. In helping with the brief, however, I think I may have changed my mind and also support respondents.

The case asks the question of whether the "public use" limitation of the Just Compensation Clause of the Fifth Amendment should be interpreted to incorporate a substantive limitation on takings for economic development.

The synopsis of the case on the Institute for Justice (counsel for petitioners) website:

In 1998, pharmaceutical giant Pfizer built a plant next to Fort Trumbull and the City determined that someone else could make better use of the land than the Fort Trumbull residents. The City handed over its power of eminent domain--the ability to take private property for public use - to the New London Development Corporation (NLDC), a private body, to take the entire neighborhood for private development. As the Fort Trumbull neighbors found out, when private entities wield government's awesome power of eminent domain and can justify taking property with the nebulous claim of "economic development," all homeowners are in trouble.

I've just skimmed some of the other briefs and I'll post more once I get a chance to read them in more detail. But as far as I can tell, petitioners and their amici advance only one legal argument: They seek a clear break from precedent in an attempt to change the "public use" requirement of the Fifth Amendment to allow greater property rights protection.

They ask the court to adopt the reasoning of the recent Michigan Supreme Court case, County of Wayne v. Hathcock, 471 Mich. 445, 684 N.W. 2d 765 (2004), and a heightened standard of review of public use determinations as in the uncompensated appropriations cases, Nollan v. California Coastal Council, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994).

Now the second argument I find kind of weird since it seems pretty obvious why Nollan and Dolan -- cases where the takings go uncompensated as opposed to the "public use" cases where the takees get just compensation -- would get less deference to the legislature and heightened judicial scrutiny.

In dealing with the first argument -- the adoption of Hathcock -- Professor Merrill offers some insightful critique of the case and the possible negative effects of the Supreme Court adopting the case. But what convinced me was the history of the public use requirement in Supreme Court precedent and what a substantial break the adoption of Hathcock would be.

I pulled together all of the cases the U.S. Supreme Court has ever decided on "public use" and as far as I can tell, the Supreme Court has invalidated one case in its history on the grounds that the use was not sufficiently public. The court has continued to show substantial deference to state legislatures in determining what constitutes a "public use" in spite of radical changes in state court jurisprudence on the issue.

My surprise is probably due to the fact that state courts have varied widely and have adopted very strict interpretations of public use at various points in their history. But the U.S. Supreme Court has stayed above the fray and Merrill thinks (and I think that I think) the Court should continue to do so. What constitutes "public use" is a state determination based on states' circumstances and should be (and according to Merrill largely has been) protected by state courts.

I guess the fact that this would be a clear break with precedent shouldn't be dispositive, but I am certainly a fan of leaving an issue so vague and variable as "public use" up to the states and letting the Supreme Court uphold only a "floor" of rights with the Constitution. (quoting Justice Scalia in his recent debate with Justice Breyer).

UPDATE: Crime & Federalism weighs in.