Public-Use Limitations and Natural Property Rights
53 Pages Posted: 18 Feb 2005
This Article is part of a November 2004 symposium at Michigan State University Law School on the future of public-use law after Wayne County v. Hathcock. It shows how contemporary public use law would look if recast to conform to principles of the American natural-rights theory influential between the Founding and the early twentieth century.
Natural-rights theory splits what public-use law now generally treats as one unified class of doctrinal issues into two separate questions. The first is a regulatory-takings question. Laws may condemn property without triggering eminent-domain or public-use requirements if they count as bona fide natural-law regulations of property rights. To pass muster as regulations, however, such condemnations must satisfy a form of intermediate scrutiny closely resembling the scheme set forth in Dolan v. City of Tigard, and they must condemn property either to control documented public harms or to secure affected owners an average reciprocity of advantage. If a condemnation fails this regulatory-takings question, it is in substance an act of eminent domain and must face a second question - whether the public actually uses the property taken. If the public uses the property, the condemnation is constitutional and compensation must be paid; if not, the condemnation is unconstitutional and no award of just compensation can save it.
This understanding of takings and public-use law is relevant for several reasons. First, it clarifies the substantive commitments of contemporary public-use law. Berman v. Parker and other leading public-use cases rest in large part on a theoretical break with the natural-rights approach to public use; if one appreciates the break, one better understands the goals that Berman advances. Second, the sources that inform the natural-rights approach provide important, if not dispositive, evidence about the original meanings of the federal and many state takings and public-use clauses. Third, the natural-rights approach demonstrates how public-use law might follow from a personhood understanding of property. Finally, the natural-rights approach provides a theoretical alternative to and critique of recent law-and-economics justifications of public-use law by Thomas Merrill and other scholars.
Keywords: public use, eminent domain, blight, redevelopment, Hathcock, Kelo, Berman, Midkiff, takings, natural rights
JEL Classification: A13, H70, K11
Suggested Citation: Suggested Citation
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By O. Lee Reed