Public Use or Public Purpose

Public Use or Public Purpose – sounds the same doesn’t it? What’s the difference between use and purpose? Well let me tell you there is plenty of difference between those two little words, if we are talking about your private land and your right to keep it. Read Robert Freer’s article below to find out what this means to you and why the Justices of the Supreme Court really can affect your daily life. It’s called interpreting the Constitution and changing even a minor little word.

By Robert E. Freer, Jr., President of The Free Enterprise Foundation

According to John Adams, judges should be …”men of experience on the laws, of exemplary morals, invincible patience, unruffled calmness, indefatigable application… {and} subservient to none” While in the past decade the passions of the day have gotten us away from this truth and clouded our vision, President Bush with his selection of Judge John Roberts has returned to an emphasis on timeless values. The President has selected a nominee for our highest court fully deserving of Adam’s admonition. Judge Roberts deserves our support. Even those who are concerned that his appointment will be bad news for their expansive notions of judicial power, grant that he is a distinguished scholar, experienced in the business of The Court, impartial in his treatment of litigants before him, loath to decide matters extraneous to the central issue before The Court and disciplined in his application of precedent. While it is always foolhardy to anticipate how a political body will act before it does so, it also appears that Judge Roberts will be Mr. Justice Roberts before the first Monday in October. If so, Mr. Justice Thomas and Mr. Justice Scalia will have a new member of the original intent wing of jurisprudence to bring more attention to their own very scholarly writings on our Founders’ intent. It is none too soon. In the recent case of Kelo v. New London, Connecticut, The Court ruled 5 to 4 that where the legislature and city government had teamed up to create a comprehensive renewal plan for New London , it was alright as an effective part of that plan to take perfectly habitable homes from citizens for the benefit of a private developer that was to carry out the revitalization. In its decision, The Court cites a state statute that specifically authorizes the use of eminent domain to promote economic development and concludes, “[b]ecause the plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the fifth amendment.” As noted in Justice Thomas’s dissent, the notion that “public use” envisioned by the Founders included the taking of private property merely because it “benefited” the public in some indirect general way is about as far off the mark as you can get. Takings to be authorized under the law must be as the Constitution says “for public use”. Only by subscribing to the “it depends on what the meaning of is, is” school of jurisprudence can you parse that term as including as a permitted taking what amounts to the private development of property from which the public purse may benefit but from which the public may be excluded and does not benefit from general access and use. While Justice O’Connor provides the main dissent in this case, it is in Mr. Justice Thomas’ historical analysis that its fallacy is starkly set out. Justice Thomas, citing Blackstone notes that “the law of the land…postpones[s] even public necessity to the sacred and inviolable rights of private property.” The Court has replaced a “Public Use” test with a “Public Purpose” test no where found in the Constitution. He concludes that the Court cannot eliminate “liberties expressly enumerated in the Constitution” and joins Madam Justice O’Connor in her dissent. Citing Marbury v Madison, the case that launched the independent course of the judiciary, he notes that no clause in the Constitution can be presumed to be without effect and this clause is an express limit on the power of government. My take on this is that while we could all think of a worthy use of the condemnation power benefiting our community, benefiting the community is not the sole requirement. While all takings that do meet a “public use’ test are beneficial to the community and proper, not all takings that are beneficial to the community meet the “public use” requirement and are therefore improper. We have been seduced over time to allow the plan language of the Constitution to become meaningless in this instance. Each well intentioned case that has twisted the language to accomplish a “beneficial end” has done a disservice to our Constitution. That is the specific danger of an activist judiciary and one where well intentioned men and women, motivated by “good will” have allowed our sacred document to be improperly “amended”… And we all know where good intentions lead us! Property ownership is a natural right. For the state to take it from us, it should be considered as if it is all the citizens are buying it for their collective benefit and for the public good. For it to be a proper taking, the whole public must be able to use and benefit from the taking.

Copyright © 2007 by Robert E. Freer, Jr. All rights reserved

About the author: Robert E. Freer, Jr. is President of The Free Enterprise Foundation. He is a Visiting Professor, at The Citadel and elected in 2005 to be their first John S. Grinalds Leader in Residence. A regular contributor to the Mercury, He can be reached by E-mail at The Citadel . Copies of his earlier columns can be found The Free Enterprise Foundation.

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