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1. Introduction

[W]hen we come to inquire what are public uses for which the right of compulsory taking may be employed, and what are private uses for which the right is forbidden, we find no agreement, either in reasoning or conclusion.1

Further efforts at providing a precise definition of “public use” are doomed to fail . . . .2

The concept of the Eminent Domain can be traced back to the Fifth Amendment to the Constitution of the United States. The first part of the Fifth Amendment states that no person can be deprived of his life, liberty and property without following the due process of law. It further provides that the private property of the individual cannot be taken by the states for public purpose without just compensation. In essence, the Fifth Amendment provides a check on the power of the states to acquire the private property of any individual. The state can acquire such property only for the public purpose by following a due process of law and by giving fair compensation to the individual.

Three terms i.e. “public purpose”, “due process of law” and “fair compensation” which have been used in the Fifth Amendment needs to be discussed and analyzed in great detail as they have created a lot of controversies in the United States through the multiplicity of cases. A plethora of decisions of different courts of the United States interpreting these three terms are available for our discussion. However, the multiple the interpretation of these terms have again triggered a lot of controversies.

The recent judgment passed by the Supreme Court of the United States in the case of Kelo v City of New London3 has again triggered a lot of controversies on the interpretation of the word “public purpose” used in the Fifth Amendment. The US Supreme Court in this case has held that the term “public purpose” used in the Fifth Amendment would also mean “economic development” even such development prima facie is giving advantage to a particular group of the society.

Such interpretation of the US Supreme Court in the case of Kelo v City of New London has created a lot of controversies. Some of the scholars are of the opinion that such wide interpretation of the term “public purpose” would mean that every acquisition made by the state for any purpose can be treated as the acquisition for the “public purpose”. They are of the opinion that the right to property of the individual and the concept of eminent domain would be frequently abused by the states as they can declare any acquisition as the one for public purpose. The property right of the individual is under serious threat in the United States. On the other hand, some of the scholars are of the view that such wide interpretation can be given to the term “public purpose” as economic development of any region is indeed a public purpose as the benefit from the economic development will eventually trickle down to different sections of the society.

In order to throw light on the controversies surrounding the term “public purpose”, the authors in this paper shall discuss the history of “public use” in the United States. The judgment of the US Supreme Court in the case of Kelo v City of New London shall also be critically analyzed by the authors in this paper. The authors shall also discuss the current status of the term “public purpose” in the United States after the judgment of Kelo.

1 Hairston v. Danville & W. Ry. Co., 208 U.S. 598, 606 (1908). 2 2a Nichols’ The Law Of Eminent Domain § 7.02[5], At 7-46 3 125 S. Ct. 2655 (2005)

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2. History of “Public Use”

The concept of the Eminent Domain i.e. the power of the government to seize the property of the individual by giving just compensation originated in England during the time of William the Conqueror.4 The concept of Eminent Domain was very common in England wherein it was considered that the King is the ultimately held the title to all the land. This meant that if the king needed the property, he was permitted to take it in the interest of the public at large.5 However, the King was also considered responsible to pay just compensation to the individual whose property has been acquired by him.6

This concept of the eminent domain originated in the England appeared in America as early as the seventeenth century.7However, the power of the eminent domain was used very rarely in the colonial America. Hence, the incidents of the use of the power of the eminent domain in America before its independence were very rare. Thus, the incidents of the abuse of the power by the government, the interpretation of the term “public use” by the judiciary could not be found.8

The legislators of the America even at the time of America did not give much importance to the power of the eminent domain of the government, as the matter of which no provision related to the eminent domain was incorporated in the original Bills of Right which eventually became to the Constitution of the United States.

However, some of the legislators of the United States felt the need to check the power of the government under the eminent domain in order protect the property right of the individual. They feared that the government’s power to take property, if left unrestricted, could jeopardize private property rights of the individual.9As a result of which, the Constitution of the United States was amended to provide for statutory safeguards to check the power of eminent domain.10

The idea of the statutory safeguards to check the power of the eminent domain of the government was mooted by James Madison, who drafted the original language of the Public Use Clause i.e. Fifth Amendment to the Constitution of the United States.11 The drafters of the Bill of Rights adopted Madison’s proposal as part of the Fifth Amendment, which limits eminent domain to the taking of “private property . . . for public use.”12

The incorporation of the Taking Clause in the Bills of Right marked the beginning of the evolution of the concept of the eminent domain in the United States. Initially, almost no disputes reached the court of the United States related to the Taking Clause and the exercise of the power of the eminent domain by the government. This fact can be corroborated from the fact that the Supreme Court of the United States for the first time tried the case related to the Taking Clause of the constitution in 1875.13

Having discussed the history of the Taking Clause in the US Constitution, let us now discuss some of the landmark judgments of the US Judiciary which interpreted the term “public use”.

4 2a Nichols’ The Law Of Eminent Domain § 7.01[3], At 7-16 125 S. Ct. 2655 (2005) 5 Ibid. 6 Ibid. 7 The Public Use Limitation on Eminent Domain: An Advance Requiem, 58 YALE L.J. 599, 605–06 (1949) 8 Ibid. 9 Jack N. Rakove, “Original Meanings: Politics And Ideas In The Making Of The Constitution” 314–15 (1996) 10 Ibid. 11 Ibid. 12 Vth Amendment to the Constitution of the United States 13 Kohl v. United States, 91 U.S. 367 (1875).

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The term “public use” has been the moot question in a number of case laws. A lot of controversies have arisen on the judicial interpretation of the term “public use” which once again got aggravated after the judgment of the US Supreme Court in Kelo.

The US Judiciary in the initial days had taken a very strict approach towards the interpretation of the Taking Clause of the US Constitution. The US Supreme in several cases in the late 19th and early 20th century has given strict interpretation to the Taking Clause. It did not allow the acquisition of the private property of the individual by the government which gives primary benefit to the private parties with incidental public benefits. It indicated that takings for private parties with incidental public benefits violated the Public Use or Due Process Clause.14

This view of the US Supreme Court was also endorsed by most of the eminent jurists of the nineteenth century who were also of the opinion that the provision given in the Taking Clause of the US Constitution should not be invoked by the government in those situations where the private parties would be the primary beneficiary with incidental public benefits.15 Such use of the eminent domain violated the public use requirement.16

However, the US judiciary could not ignore the rapid technological innovations taking place in the country in the 20th century. The private corporations increasingly began to the power to condemn property for their own objectives.17 As a result, the US judiciary started giving wide interpretation to the “public use requirement” of the Taking clause of the Constitution.

The first case decided by the US judiciary on this line was Mt. Vernon-Woodberry Cotton Duck Co. v. Ala. Interstate Power Co.18, wherein the Supreme Court of the United States, led by Justice Oliver Wendel Holmes, Jr., expanded the definition of public use and repudiated the previous interpretation, which required actual use by the public.19It held that such acquisition of the property which primarily benefitted the private entities with incidental public benefit deemed to satisfy the public use requirement of the Taking Clause.20

Furthermore, the US Supreme Court reiterated this view in the case of Fallbrook Irriga-tion District v. Bradley,21wherein it held that the public use requirement of the Taking Clause means only a conceivable “public purpose”. It further held that it is not necessary that the primary beneficial of such acquisition is not public but other primary entities. The public use requirement only requires that the whole acquisition should involve some public purpose.22The US Judiciary after the Second World War abandoned almost any judicial limitation on the use of eminent domain by suggesting that a legislative determination of public use foreclosed judicial review.23

The decision of the US Supreme Court in the case of Berman v Parker24 is another important judgment wherein it has given a very wide interpretation to the public use requirement of the Taking Clause. This case involved the constitutionality of the District of California Redevelopment Act

14 Clark v. Nash, 198 U.S. 361, 369 (1905). See also Mo. Pac. Ry. Co. v. Nebraska, 164 U.S. 403, 417 (1896) 15 Thomas Cooley,“Constitutional Limitations”, Yale Law Journal 654 (1868). See also Richard A. Epstein,

Takings: Private Property And The Power Of Eminent Domain, Yale Law Journal 178 (1985) 16 Ibid. 17 William A. Fischel, “The Political Economy of Public Use in Poletown: How Federal Grants Encourage

Excessive Use of Eminent Domain”, 2004 MICH. ST. L. REV. 929, 932 (2004) 18 U.S. 30, 32 (1916) 19 Ibid. 20 Ibid. 21 164 U.S. 112 (1896). 22 Ibid. 23 United States ex rel. Tenn. Valley Auth. v. Welch, 327 U.S. 546, 551–52 (1946) 24 348 U.S. 26 (1954)

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of 194525 which provided for the acquisition of the properties present in the blighted areas in the southwest portion of the nation’s capital. The appellant in this case hold a non-blighted property i.e. departmental store in the condemned area which was also acquired under the Act. The appellant challenged the validity of the Act before the US Courts.26

The US Supreme Court upheld the Act and the acquisition of the property of the appellant present in the condemned area even though the redevelopment zone included non-blighted property. It held that the role of the judiciary in determining whether eminent domain is being exercised for a public purpose is an extremely narrow one.27It further went on to once the legislature had determined that the use of eminent domain was for a public use, the role of the courts in reviewing the legislature’s judgment was extremely narrow 28

The decision of the US Supreme Court in this case was a turning point in the history of the Taking Clause. The requirement of the public use requirement was given a very wide interpretation. It clearly established the fact that the power of the country is very narrow once the legislature has declared that the acquisition is for public use. It impliedly means that the public use requirement of the Taking Clause will deemed to be fulfilled once the legislature provides that the use of the eminent domain is for a public use.

Moreover, the US Supreme Court once again got the chance to revisit the law related to the public use requirement in the case of Hawaii Housing Authority v. Midkiff.29 It involved a scheme adopted by the Hawaii legislature wherein the government of Hawaii acquired lots owned by the large landowners by exercising the power of eminent domain and then transferred the lots to the other non-land owners or the tenants living on those lots.30

The US Supreme Court in the Hawaii case unanimously upheld the acquisition done by the authorities in the exercise of its power of eminent domain. It held that the legislatures should be given the space to determine the “public use” to justify the use of Taking Clause to acquire the property of the individuals.31 It further held that the legislature’s judgment as to what constitutes a “public use” for the satisfaction of the Taking Clause should be given preference and it will not interfere with the judgment of the legislature unless the use is without reasonable justification.32

The Supreme Court in Midkiff further held that the public use requirement in the Taking Clause is within the ambit of the sovereign’s power. It means that review of legislative determinations of public use requires only minimal judicial scrutiny under the rational basis standard (which applies to all other economic legislation). 33The Court’s reverent approach in Midkiff signaled that almost any governmental taking, including a taking involving a private transfer, would qualify as a legitimate public use.34

25Supra note 24 26 Ibid. 27 Ibid. 28 Ibid. 29 467 U.S. 229 (1984). 30 Ibid. 31 Kelo v. City of New London, 125 S. Ct. 2655, 2664 ( 32 United States v. Gettysburg Elec. R.R. Co., 160 U.S. 668, 680 (1896) 33 Bruce A. Ackerman, “Private Property And The Constitution”, 190 N.5 (1977) 34 Mark C. Landry, Note, “The Public Use Requirement in Eminent Domain—A Requiem”, 60 TUL. L. REV.

419, 430 (1985), Thomas J. Loyne, Note, Hawaii Housing Authority v. Midkiff, “A Final Requiem for the Public Use Limitation on Eminent Domain?”, 60 Notre Dame L. Rev. 388, 404

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3. From Poletown to Kelo via Hathkok

Having analyzed the evolution of the term “public use requirement” in the Taking Clause from the late 18th century to the early 20th century, let us now discuss the controversies which had arisen on its interpretation in the most recent times.

The liberal interpretation of the “public use requirement” by the US Federal Judiciary in a number of cases especially after the Second World War prompted many state courts in the US in giving wide interpretation to the public use requirements in their own state constitutions.35 They followed the U.S. Supreme Court’s approach of defining public use as “public purpose” and deferring to legislative determinations of public use.36

The approach of the different courts of the United States in giving wide interpretation to the public use requirement finally culminated in the landmark case of Poletown Neighborhood Council v. City of Detroit37, which is considered to be the most important case on the interpretation of the public use requirement of the Taking Clause.

The Poletowm case involved the controversy related to the use of the power of eminent domain by the authorities of the Detroit wherein the entire neighborhood council area was acquired for the construction of a new General Motors Manufacturing Plant.38The appellant contended that the power of eminent domain cannot be exercised as the said acquisition did not satisfy the public use requirement of the Taking Clause as the direct and primary beneficiary of the entire acquisition is a private entity i.e. General Motors.39

However, the Supreme Court of the Michigan rejected the contentions of the appellant and upheld the acquisition in the light of the judgment passes by the US Supreme Court wherein it had given a very wide interpretation to the public use requirement of the Taking Clause.40 The Michigan Supreme Court equated the public use requirement with the public purpose.41 It held that the even though the primary and direct beneficiary of the acquisition is the private entity, the public will also ultimately get benefit from the acquisition.42 It further held that a municipality’s use of the power of the eminent domain to alleviate unemployment and revitalize the local economy constitutes two essential public purposes.43

The Michigan Supreme Court in the Poletown equated the concept of the public use with public purpose. It proved to be one of the landmark judgments on the interpretation to the public use requirements of the Taking Clause. Relying on it, many state courts started interpreting their own state constitutions in a similar manner and equated public use with public purpose.44 As a result, the concept of the public use requirement under most state constitutions, as well as the US

35 Kelo v. City of New London, 545 U.S. See also Joseph William Singer, Property Law: Rules, Policies, And

Practices § 12.4.2, at 1182 (3d ed. 2002) 36 Ibid. 37 304 N.W.2d 455 (Mich. 1981) 38 Ibid. 39 Ibid. 40 Ibid. 41 Ibid. 42 Ibid. 43 Poletown, 304 N.W.2d at 457 44 Jamestown v. Leevers, 552 N.W.2d 365, 369, 372–74 (N.D. 1996). See also City of Duluth v. State, 390 N.W.2d 757, 763 (Minn. 1986)

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Constitution45 underwent a drastic change and the courts started upholding almost any project as a public use even if a private party received the primary benefit.46

3.1 Overcoming Poletown: Hathkok Era

The Poletown judgment was severely criticized by most of the legal scholars.47 However, it served as an important reference point for other state courts for over thirty years before suffering a reversal of fortunes when the Michigan Supreme Court issued its decision in Hathcock in 2004.

The Michigan Supreme Court overruled its decision given in the Poletown case in the case of County of Wayne v. Hathcock48. The Hathcock case involved the condemnation plan of the Wayne County wherein the private properties were being acquired for the group of private developers for the construction of a business and technology park.49

However, the Michigan Supreme Court made a significant departure from the approach of the US Federal Court and its approach in the Poletown case and declared the acquisition plan of the Wayne County as unconstitutional as it did not fulfill the public use requirement of the Taking Clause in the light of the fact that the condemnations for a 1,300-acre business park, which would be privately owned and controlled.50 It described Poletown as a “radical departure from fundamental constitutional principles.”51

The Michigan Supreme Court decision in the Hatchcock is the turning point in the jurisprudence of the eminent domain. It suggested the changing wind of the concept of eminent domain. It narrowed down the concept of the public use requirement. It also held that the economic benefit and public purpose rationale of the Poletown would validate almost every exercise of the power of the eminent domain of the government on behalf of the private entity as every business in some or the other results in the public benefit.52

It further suggested that the public use requirement require the government to transfer the private property of the individual to the private entities by exercising its power of the eminent domain under three set of circumstances.53 First, the transfer of the private property to the private entities will be permitted in case it is necessary to overcome a collective action problem e.g. construction of highway, railways, pipelines, dams, reservoirs etc.54 Second, where “facts of independent public significance” beyond the private recipient’s interest may justify the transfer and third, where the taken property will be subject to continuous government oversight, such as when the seized properties will be used for a government-affiliated university campus.55

45 Supra note 44 46 Duncan Kennedy, “The Stages of the Decline of the Public/Private Distinction”, 130 U. PA. L. REV. 1349,

1354 (1982). See Susan Crabtree, Note, Public Use in Eminent Domain: Are There Limits After Oakland Raiders and Poletown?, 20 CAL. W. L. REV. 82, 103 (1983) 47 Joseph L. Sax, “Some Thoughts on the Decline of Private Property”, 58 Wash. L. Rev. 481, 489–90 (1983);

Ilya Somin, Overcoming Poletown: County of Wayne v. Hathcock, Economic Development Takings, and the

Future of Public Use, 2004 Mich. St. L. Rev. 1005, 1006–07 48 684 N.W.2d 765 (Mich. 2004). 49 Ibid. 50 Ibid. 51 Ibid. 52 Mary Massaron Ross, “Public Use: Does County of Wayne v. Hathcock Signal a Revival of the Public Use

Limit to the Taking of Private Property?” 37 URB. LAW. 243, 247–48 (2005) 53 County of Wayne v. Hathcock, 684 N.W.2d 765, 781–83 54 Ibid. 55 Ibid.

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The Hathcock proved to be the turning point in the jurisprudence of the eminent domain. The narrow interpretation of the public use requirement was a setback to the government plans of the acquiring private properties for the benefits of the private entities. However, the ambit of the Hathcock was limited as it was given by the Michigan Supreme Court and not the Federal Supreme Court.

3.2 The Kelo Storm

The scope of the Hathcock judgment was limited as it had been decided by the Supreme Court of Michigan. However, the Federal Supreme Court very soon got the opportunity to overrule its severely criticized judgment in the case of Poletown and set a new jurisprudence of the power of eminent domain of the state by interpreting the public use requirement of the Taking Clause in the line of the Hathcock in the case of Kelo v City of New London56.

The Federal Supreme Court in the case of Kelo v City of New London, however, did the exactly opposite. It gave even much wider interpretation to the public use requirement of the Taking Clause than the interpretation given in Berman, Midkiff and Poletown. It held that the economic development of any reason will be deemed to satisfy the public use requirement of the Taking Clause.

The Kelo case involved the controversy over the exercise of the power of the eminent domain by the New London Development Corporation in the pretext of the economic development. A Global Research Facility including Corporate Parks, Hotels, and Conference Centre etc. was planned by the New London Development Corporation.57 The New London City Council gave initial approval for preparation of a development plan, and the NLDC began holding community meetings.58 The Development Plan approved by the NLDC under which the authorities tried to buy 115 houses in the nearby area in order to sell it to commercial developers. With this plan, the NLDC decided to use the power of eminent domain to acquire properties within the area whose owners had not been willing to sell.59

However, the petitioner decided to challenge the condemnation plan of the authorities and brought an action in the Superior Court of Connecticut. The plaintiff contended that the development plan of the NLDC which was also approved by the City Council did not fulfill the public use requirement of the Taking Clause as the properties were given to the private entity.

The Superior Court of the Connecticut decided partially in favor of the plaintiff and issued a permanent injunction against the condemnation of some properties of the plaintiff.60 However, it did not grant injunction in the appropriation of the properties of the plaintiff which were in Parcel 3.61It, however, did not decide on the question whether “economic development” would itself said to satisfy the public use requirement under the Fifth Amendment if he private entity is the primary and direct beneficial of such developments.62

Both the parties filed petition before the Supreme Court of the Connecticut for review of the judgment of the Superior Court. The Supreme Court reversed the judgment of the Superior Court and held that the development plan of the NDLC constituted public use as required under

56 Supra note 43 57. Kelo, 843 A.2d at 510. 58 Ibid. 59. Conn. Gen. Stat. § 8-193 (2004). See Kelo, 843 A.2d at 547–52. 60 Kelo, 2002 WL 500238, at *106–12. 61 Ibid. 62 26 Am. Jur. 2d § 56, p. 501

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the Taking Clause.63 It also quashed the permanent injunction granted by the Superior Court.64 It held that the public would be the direct and primary beneficiary of the development plan approved by the NDLC instead of the private entities.65The plaintiff filed an appeal before the US Supreme Court against the judgment passed by the Supreme Court of Connecticut

The decision of the US Supreme Court redefined the jurisprudence of the power of eminent domain vis-à-vis Fifth Amendment to the US Constitution. The US Supreme Court discussed extensively the question of “economic development” as public use under the Taking Clause. The majority of the bench headed by Justice Stevens relied on the Berman and Medkiff case and widely interpreted the term public use requirement in the Taking Clause.66 It further held that the development plan was not designed to benefit a particular group of society or individual rather it is the public who is the primary and direct beneficiary of the development plan.67

The majority opined that

“For more than a century, our public use jurisprudence has…afford [ed] legislatures broad latitude in determining what public needs justify the use of the takings power…Promoting economic development is a traditional and long accepted function of government. There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized.”68

Hence, the US Supreme Court clearly held that the economic development and public purpose cannot be distinguished from each other as the economic development is a traditional function of the government. It means that the economic development would fall under the ambit of public use and the condemnation of the properties on the ground of economic development would indeed a public use under the Taking Clause. However, the US Supreme Court did not go on to explain the meaning of “economic development” in this case.

However, it is very interesting to note that the Kelo was not decided unanimously by the US Supreme Court. Justice O’ Connor who previously authored judgment in the Midkiff case gave dissenting opinion by overruling her own judgment given in the Midkiff. According to O’Connor, there are only three types of takings that comply with the public use requirement: private property transferred to public ownership; private property transferred to common carriers (railroads, public utilities) that will make it available to the public; and private property transferred to private parties “in certain circumstances and to meet certain exigencies.69She further held that by equating economic development with the public use would result in the significant expansion of the ambit of public use which would produce undesirable results in the future.

Justice O’ Connor was joined by Justice Mathew who also gave a dissenting opinion in Kelo. He argued for an “originalist” understanding of the public use as actual use by the public.70He also noted that the poor communities who are also not politically powerful would have to suffer if the economic development would be equated with the public use as they would not be benefitted

63 Kelo v. City of New London, 843 A.2d 500, 531 (Conn. 2004). 64 Kelo, 843 A.2d at 572 65 Kelo 843 A.2d at 542. 66 Kelo v. New London, 125 S. Ct. 2655, 2661–62 (2005) 67 Ibid. 68 Ibid. 69 Kelo, 125 S. Ct. at 2675 (O’Connor, J., dissenting) 70 Richard Kay, “Originalist” Values and Constitutional Interpretation, 19 Harv. J.L. & Pub. Pol’y 335 (1996).

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from such development in a real sense.71 He also made an appeal for considerations of social justice.72

The US Supreme Court in Kelo redefined the whole jurisprudence of the power of eminent domain vis-à-vis Fifth Amendment to the US Constitution. It has also been severely criticized by many legal scholars. After the Kelo, it has become very clear that the protection of the Fifth Amendment is now in the hands of state governments.73The US Supreme Court in Kelo has categorically stated that the federal courts will not interfere with the legislature in determining as to what constitutes a public use in the area of the eminent domain.74

The Kelo decision prompted the states to enact their own laws on the eminent domain as to determine what will constitute as “public use”. The position of the “public use” in the United States after Kelo will be discussed in the next section.

4. Public Use after Kelo

The understanding of the term “public use” changed significantly after the Kelo decision given by the US Supreme Court. In Kelo, the Supreme Court has made it very clear that the determination of the meaning of the “public use” is under the domain of the states and the Federal government shall defer itself in determining its meaning. As a result, some states brought their own legislations to determine the meaning of the “public use requirement”. Some gave wider interpretation to the term “public use” while some states restricted the meaning of “public use”.

Thirty Six state legislatures have enacted legislations in determined the ambit of “public use” after the Kelo decision till early 2009.75However, most of these legislations have given very wide interpretation to the word “public use”. This is evident from the fact that twenty- two of the thirty-six new state laws provide little or no protection for property owners against economic development takings.76Moreover, only fourteen state legislatures have enacted laws that either ban economic development takings or significantly restrict them.77Some of the legislations enacted by some of the states are discussed in the subsequent paragraphs.

4.1 California

The State Legislature of California has enacted five legislations related to the power of eminent domain after the Kelo decision. However, none of the five legislations had any provisions prohibiting the condemnation of the private properties of the individual on the ground of economic development. However, they did create some minor new procedural hurdles for the government or the local authorities to acquire the properties of the individuals.78

4.2 Deleware

The bill related to the eminent domain power of the government introduced in the legislature of the state of Deleware is the most controversial bill. It does not change any situation. It reiterates

71 Kelo, 125 S. Ct. at 2686–87 (Thomas, J., dissenting). 72 Ibid. 73 Kelo, 125 S. Ct. at 2668 (majority opinion) 74 Ibid. 75 Ibid. 76 Ibid. 77 Ibid. 78S.53, 1210, 1650, 1809, 2006 Leg. (Cal. 2006).

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the provision given in the Taking Clause.79 It does not specifically restrict the acquisition of the property in the pretext of economic development. It provides that the power of eminent domain only be exercised for “the purposes of a recognized public use as described at least 6 months in advance of the institution of condemnation proceedings.80 It further provides for the requirement of notice which shall be given (a) In a certified planning document; (b) At a public hearing held specifically to address the acquisition; or (c) In a published report of the acquiring agency.81

It means that it also indirectly permits the condemnation of the property for economic development. This bill only restates the current provision of the Taking Clause which provides for the “public use requirement”. Hence, the major problem with this bill is the issues related to the interpretation of the term “recognized public use”.

4.3 Connecticut

The state of Connecticut from where the Kelo had originated has also enacted a legislation related to the power of eminent domain of the government after the Kelo decision by the US Supreme Court. It, however, did not restrict the use of the power of eminent domain for economic development.82 It merely forbids the condemnation of property “for the primary purpose of increasing local tax revenue.”83 On the contrary, it permits the local governments to condemn property for both economic development purposes and to alleviate blight-like conditions.84

It is an irony that the state in which the Kelo case had originated has enacted one of the nation’s weakest post-Kelo reform laws, one that would not have prevented the condemnations challenged by Susette Kelo and her fellow New London property owners.

4.4 Maryland

The law passed by the state of Maryland as the pasrt of post Kelo reform also does not restrict the condemnation of the properties for economic development or blight. It merely provides that the condemnation of the properties of the individual must be completed within four years from the date of authorization of such condemnations on the expiry of which the authorities will not be allowed to condemn the said properties by exercising the power of the eminent domain.85

4.5 Lowa

Lowa was one of the few states in the US which specifically prohibits the exercise of the power of eminent domain for economic development. The Iowa Legislature passed a 2006 bill restricting the use of eminent domain for economic development. However, the bill was vetoed by one of the governor but the veto was overridden by the legislature.86

79 Del. Sen. Bill 7 (codified at Del. Code Ann. Tit. 29, § 9501A) (signed into law Apr 9, 2009), available at

http://legis.delaware.gov/LIS/LIS145.NSF/vwLegislation/SB+7?Opendocument, last accessed on September 5,

2013. 80 Del. Code Ann. Tit. 29 § 9505(15) (supp. 2008). 81 Ibid. 82 Conn. Gen. Stat. § 8-124 83 Conn. Gen. Stat § 8-193(b)(1) (2009). 84 Conn. Gen. Stat §§ 8-125 to -133 (2009) 85 Md. Const. art. III, § 61 86 Available at http://learfield.typepad.com/radioiowa/2006/06/politics_of_emi.html, last accessed on September 5, 2013

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4.6 Nevada

Nevada was also one of the states which brought amendment to its constitution to restrict the meaning of the public use with respect to the exercise of the power of eminent domain by the government. A voter approved amendment to the Constitution of Nevada titled People’s Initiative To Stop The Taking Of Our Land (PISTOL) restricted the meaning of the “public use”.87 It provides that the term “public use” does not include within its ambit he direct or indirect transfer of any interest in property taken in an eminent domain proceeding from one private party to another private party.88 It also provides that the burden to prove public use in every condemnation shall lie on the government.89

4.7 Michigan

Michigan was another state in the US which amended its Constitution after the Kelo decision to specifically prohibit the condemnation of the properties for economic development. It specifically provides that the government from taking private property for transfer to another private individual or business for purposes of economic development or increasing tax revenue.90

In addition to the reforms brought by the states post Kelo in order to redefine the term “public use” as used in the Taking Clause of the Constitution, some amendments and legislations were also proposed at the federal level by the Senate and House of Representatives. The first attempt to restrict the meaning of the term “public use” was done within three weeks of the Kelo decision when Senator John Cornyn proposed legislation that would construe the Public Use Clause narrowly, so as to bar the use of eminent domain in order to achieve economic development.91

5. Conclusion

The meaning of the “Public Use” as used in the Taking Clause of the US Constitution has undergone many changes. A lot of controversies have arisen in the past over the judicial interpretation of this term. An analysis of the evolution of the “public use” in the United States suggests us that its interpretation is subject to the level of industrialization and demand of the society. This is very evident from the fact that the courts used to give a very narrow interpretation to the “public use requirement” in the late 18th century and early 19th century when the level of industrialization has not started properly in the United States. However, after the Second World War, the courts in the United States started giving very broad interpretation to this term succumbing to the pressure of the large industrial groups.

The evolution of the “public use” from Berman to Kelo poses a serious threat to the property right of the individual in the United States. The wide interpretation of the “public use requirement” made by the US Supreme Court in Kelo made it very clear that nearly all acquisition made by the government in the exercise of its power of eminent domain can be justified in the name of public use. It also deferred itself to question the determination of the government as to what constitutes a “public use”.

Kelo prompted many states in the United States to brought amendment in the Constitution to enact new legislations in order to restrict the power of eminent domain of the government by

87 Nev. Rev. Stat. § 37.010(1)(q) (2007). 88 Available at www.lvrj.com/news/breaking_news/35075129.html, last accessed on September 5, 2013 89 Ibid 90 Available at www.iandrinstitute.org/BW%202006-5%20%28Election%20results%29.pdf, last accessed on

September 5, 2013 91 S. 1313, 109th Cong. (2005).

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determining the ambit of the term “public use”. Now the question arises as to whether the Post Kelo Reform has brought any significant change in the meaning of the term “public use”. After analyzing some of the legislations/amendments brought by some of the states, we do not think that any significant changes have been brought with respect to the interpretation of “public use” by the states in the US.

The changes brought by most of the states are ineffective in a real sense as they do not restrict the use of power of eminent domain for economic development. These legislations restrict themselves in interpreting the meaning of the “public use”. They have brought only procedural changes in the exercise of the “public use”. However, some of the states like Nevada and Michigan has clearly determined the scope and ambit of the “public use” in their constitution through constitutional amendments through Kelo.

Kelo is one of the severely criticized judgments which have been delivered in the recent times by the US Supreme Court. The US Supreme Court has erred in refraining itself from determining the ambit of the “public use” and constituting economic development as public use. It has clearly undermined the property right of the individuals. The government can justify any acquisition on the ground of economic development as every development plan indeed contributes to the economic development of the area. The US Supreme Court has also lost a golden opportunity to lose a golden chance to redefine the jurisprudence of the eminent domain in the United States. Now, it has to be seen as to whether the US Supreme Courts in the near future redefines the “public use” or follows the footprint of the Kelo.

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6. Bibliography

6.1 Articles Referred

The Public Use Limitation on Eminent Domain: An Advance Requiem, 58 Yale Law

Journal 599, 605–06 (1949)

Jack N. Rakove, “Original Meanings: Politics And Ideas In The Making Of The

Constitution” 314–15 (1996)

Thomas Cooley,“Constitutional Limitations”, Yale Law Journal 654 (1868)

Richard A. Epstein, Takings: Private Property And The Power Of Eminent Domain, Yale

Law Journal 178 (1985)

A. Fischel, “The Political Economy of Public Use in Poletown: How Federal Grants

Encourage Excessive Use of Eminent Domain”, 2004 MICH. ST. L. REV. 929, 932

(2004)

Bruce A. Ackerman, “Private Property And The Constitution”, 190 N.5 (1977)

Mark C. Landry, Note, “The Public Use Requirement in Eminent Domain—A

Requiem”, 60 TUL. L. REV. 419, 430 (1985),

Thomas J. Loyne, Note, Hawaii Housing Authority v. Midkiff, “A Final Requiem for the

Public Use Limitation on Eminent Domain?”, 60 Notre Dame L. Rev. 388, 404

Duncan Kennedy, “The Stages of the Decline of the Public/Private Distinction”, 130 U.

PA. L. REV. 1349, 1354 (1982)

Susan Crabtree, Note, Public Use in Eminent Domain: Are There Limits After Oakland

Raiders and Poletown?, 20 CAL. W. L. REV. 82, 103 (1983)

Mary Massaron Ross, “Public Use: Does County of Wayne v. Hathcock Signal a Revival

of the Public Use Limit to the Taking of Private Property?” 37 URB. LAW. 243, 247–48

(2005)

Richard Kay, “Originalist” Values and Constitutional Interpretation, 19 Harv. J.L. & Pub.

Pol’y 335 (1996).

6.2 Websites Referred

www.iandrinstitute.org/BW%202006-5%20%28Election%20results%29.pdf,last accessed on September 5, 2013

www.lvrj.com/news/breaking_news/35075129.html, last accessed on September 5, 2013

http://learfield.typepad.com/radioiowa/2006/06/politics_of_emi.html, last accessed on September 5, 2013

http://legis.delaware.gov/LIS/LIS145.NSF/vwLegislation/SB+7?Opendocument, last accessed on September 5, 2013.

www.sssrn.com

http://www.law.cornell.edu/supct/html/04-108.ZS.html, last accessed on September 8, 2013

http://www.oyez.org/cases/2000-2009/2004/2004_04_108, last accessed on September 8, 2013

http://ij.org/Kelo, last accessed on September 8, 2013

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http://www.law.harvard.edu/students/orgs/elr/vol30_1/rutkow.pdf, last accessed on September 8, 2013

http://www.cga.ct.gov/2005/rpt/2005-R-0560.htm, last accessed on September 8, 2013