KELO v. CITY OF NEW LONDON, CONN. 2655KELO v. CITY OF NEW LONDON, CONN. 2655 Cite as 125 S.Ct. 2655 (2005) 545 U.S. 469 case number of an earlier, dismissed ap-peal. Brief for Respondent

2655KELO v. CITY OF NEW LONDON, CONN.Cite as 125 S.Ct. 2655 (2005)

545 U.S. 469

case number of an earlier, dismissed ap-peal. Brief for Respondent 4. S 544I do notknow how to resolve these allegations, butthis only highlights the propriety of a re-mand. Even on the State’s version ofevents, petitioner’s attempt at filing forrehearing is proof of diligence on his part.

Putting these allegations aside, theCourt’s reasoning is too parsimonious.While petitioner could have shown evengreater diligence by seeking rehearing fora second time and then filing for certiorari,we have never held pro se prisoners to thestandards of counseled litigants. See, e.g.,Haines v. Kerner, 404 U.S. 519, 92 S.Ct.594, 30 L.Ed.2d 652 (1972) (per curiam).Indeed, petitioner’s situation contrastsdramatically with that of the movant in thecase the Court relies on, Ackermann v.United States, 340 U.S. 193, 71 S.Ct. 209,95 L.Ed. 207 (1950). See ante, at 2651.In upholding the denial of Rule 60(b)(6)relief in Ackermann, the Court put greatemphasis on the fact that the movant hadthe benefit of paid counsel and that, formuch of the relevant period, he was notdetained, but rather enjoyed ‘‘freedom ofmovement and action,’’ 340 U.S., at 201, 71S.Ct. 209.6 In any event, I believe thatour rules governing prisoner litigationshould favor a policy of repose rather thana policy that encourages multiple filingswith a low probability of success.7

S 545Accordingly, I agree with the Court’sconclusion that petitioner filed a ‘‘true’’Rule 60(b) motion. I respectfully dissent,however, because of the Court’s decision torule on the merits of the motion in the firstinstance.

,

545 U.S. 469, 162 L.Ed.2d 439

Susette KELO, et al., Petitioners,

v.

CITY OF NEW LONDON,CONNECTICUT, et

al.No. 04–108.

Argued Feb. 22, 2005.

Decided June 23, 2005.Rehearing Denied Aug. 22, 2005.See 545 U.S. 1158, 126 S.Ct. 24.

Background: Owners of condemned prop-erty challenged city’s exercise of eminentdomain power on ground takings were notfor public use. The Superior Court, Judi-cial District of New London, Corradino, J.,granted partial relief for owners, andcross-appeals were taken. The SupremeCourt, Norcott, J., 268 Conn. 1, 843 A.2d

6. Ackermann is further distinguishable in thatit did not involve the sort of plain error of lawthat has been identified in this case. Buteven if Ackermann were not distinguishable, Iwould find the views expressed by JusticesBlack, Frankfurter, and Douglas in dissent,see 340 U.S., at 202, 71 S.Ct. 209 (opinion ofBlack, J.), more persuasive than those ex-pressed by Justice Minton.

7. A petition for certiorari seeking review of adenial of a COA has an objectively low chanceof being granted. Such a decision is notthought to present a good vehicle for resolv-ing legal issues, and error correction is adisfavored basis for granting review, particu-

larly in noncapital cases. See generally thisCourt’s Rule 10. As for the fact that thisCourt granted certiorari in Artuz eight daysafter the Eleventh Circuit denied petitioner aCOA, it would be unrealistic to fault petitionerfor failing to capitalize on this fortuity. In myexperience, even lower courts and counseledlitigants are often not aware of our grants ofcertiorari on issues that may be relevant totheir current business. It would be particu-larly inappropriate to impose such a strictexpectation on a pro se prisoner, particularlyin the absence of any indication of when,given his circumstances in prison, he couldhave reasonably been expected to learn of ourgrant in Artuz.

2656 125 SUPREME COURT REPORTER 545 U.S. 469

500, upheld takings. Certiorari was grant-ed.

Holding: The Supreme Court, JusticeStevens, held that city’s exercise of emi-nent domain power in furtherance of eco-nomic development plan satisfied constitu-tional ‘‘public use’’ requirement.

Affirmed.

Justice Kennedy concurred and filed opin-ion.

Justice O’Connor dissented and filed opin-ion in which Chief Justice Rehnquist andJustices Scalia and Thomas joined.

Justice Thomas dissented and filed opin-ion.

1. Eminent Domain O61

Sovereign may not use its eminentdomain power to take property of oneprivate party for sole purpose of transfer-ring it to another private party, even iffirst party is paid just compensation.U.S.C.A. Const.Amend. 5.

2. Eminent Domain O13

State may use its eminent domainpower to transfer property from one pri-vate party to another if purpose of takingis future use by public. U.S.C.A. Const.Amend. 5.

3. Eminent Domain O18.5

City’s exercise of eminent domainpower in furtherance of economic develop-ment plan satisfied constitutional ‘‘publicuse’’ requirement, even though city wasnot planning to open condemned land touse by general public, where plan servedpublic purpose. U.S.C.A. Const.Amend. 5.

See publication Words and Phras-es for other judicial constructionsand definitions.

4. Eminent Domain O13, 67Court defines ‘‘public purpose,’’ need-

ed to justify exercise of eminent domainpower, broadly, reflecting longstandingpolicy of judicial deference to legislativejudgments in this field. U.S.C.A. Const.Amend. 5.

5. Eminent Domain O18.5Economic development can qualify as

‘‘public use,’’ for eminent domain purposes.U.S.C.A. Const. Amend. 5.

6. Eminent Domain O65.1No heightened standard of review is

warranted when public purpose allegedlyjustifying use of eminent domain power iseconomic development.

7. Eminent Domain O67Once court decides question of wheth-

er exercise of eminent domain power is forpublic purpose, amount and character ofland to be taken for project and need forparticular tract to complete integratedplan rests in discretion of legislativebranch.

S 469Syllabus *

After approving an integrated devel-opment plan designed to revitalize its ail-ing economy, respondent city, through itsdevelopment agent, purchased most of theproperty earmarked for the project fromwilling sellers, but initiated condemnationproceedings when petitioners, the ownersof the rest of the property, refused to sell.Petitioners brought this state-court actionclaiming, inter alia, that the taking oftheir properties would violate the ‘‘publicuse’’ restriction in the Fifth Amendment’sTakings Clause. The trial court granted apermanent restraining order prohibitingthe taking of some of the properties, but

* The syllabus constitutes no part of the opinionof the Court but has been prepared by theReporter of Decisions for the convenience of

the reader. See United States v. Detroit Tim-ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.282, 50 L.Ed. 499.


545 U.S. 470

denying relief as to others. Relying oncases such as Hawaii Housing Authorityv. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81L.Ed.2d 186, and Berman v. Parker, 348U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27, theConnecticut Supreme Court affirmed inpart and reversed in part, upholding all ofthe proposed takings.

Held: The city’s proposed dispositionof petitioners’ property qualifies as a ‘‘pub-lic use’’ within the meaning of the TakingsClause. Pp. 2661–2669.

(a) Though the city could not takepetitioners’ land simply to confer a privatebenefit on a particular private party, see,e.g., Midkiff, 467 U.S., at 245, 104 S.Ct.2321, the takings at issue here would beexecuted pursuant to a carefully consid-ered development plan, which was notadopted ‘‘to benefit a particular class ofidentifiable individuals,’’ ibid. Moreover,while the city is not planning to open thecondemned land—at least not in its entire-ty—to use by the general public, this‘‘Court long ago rejected any literal re-quirement that condemned property beput into use for the TTT public.’’ Id., at244, 104 S.Ct. 2321. Rather, it has em-braced the broader and more natural in-terpretation of public use as ‘‘public pur-pose.’’ See, e.g., Fallbrook IrrigationDist. v. Bradley, 164 U.S. 112, 158–164, 17S.Ct. 56, 41 L.Ed. 369. Without exception,the Court has defined that concept broad-ly, reflecting its longstanding policy of def-erence to legislative judgments as to whatpublic needs justify the use of the takingspower. Berman, 348 U.S. 26, 75 S.Ct. 98;Midkiff, 467 U.S. 229, 104 S.Ct. 2321;Ruckelshaus v. Monsanto Co., 467 U.S.986, 104 S.Ct. 2862, 81 L.Ed.2d 815. Pp.2661–2664.

(b) The city’s determination that thearea at issue was sufficiently distressed tojustify a program of economic rejuvenationis entitled to deference. The city has care-

fully formulated a development plan that itbelieves will provide appreciable benefitsto the community, including, S 470but notlimited to, new jobs and increased taxrevenue. As with other exercises in urbanplanning and development, the city is try-ing to coordinate a variety of commercial,residential, and recreational land uses,with the hope that they will form a wholegreater than the sum of its parts. Toeffectuate this plan, the city has invoked astate statute that specifically authorizesthe use of eminent domain to promoteeconomic development. Given the plan’scomprehensive character, the thorough de-liberation that preceded its adoption, andthe limited scope of this Court’s review insuch cases, it is appropriate here, as it wasin Berman, to resolve the challenges of theindividual owners, not on a piecemeal ba-sis, but rather in light of the entire plan.Because that plan unquestionably serves apublic purpose, the takings challengedhere satisfy the Fifth Amendment. Pp.2664–2665.

(c) Petitioners’ proposal that theCourt adopt a new bright-line rule thateconomic development does not qualify asa public use is supported by neither prece-dent nor logic. Promoting economic devel-opment is a traditional and long-acceptedgovernmental function, and there is noprincipled way of distinguishing it from theother public purposes the Court has recog-nized. See, e.g., Berman, 348 U.S., at 33,75 S.Ct. 98. Also rejected is petitioners’argument that for takings of this kind theCourt should require a ‘‘reasonable cer-tainty’’ that the expected public benefitswill actually accrue. Such a rule wouldrepresent an even greater departure fromthe Court’s precedent. E.g., Midkiff, 467U.S., at 242, 104 S.Ct. 2321. The disad-vantages of a heightened form of revieware especially pronounced in this type ofcase, where orderly implementation of acomprehensive plan requires all interestedparties’ legal rights to be established be-


fore new construction can commence. TheCourt declines to second-guess the wisdomof the means the city has selected to effec-tuate its plan. Berman, 348 U.S., at 35–36, 75 S.Ct. 98. Pp. 2665–2669.

268 Conn. 1, 843 A.2d 500, affirmed.

STEVENS, J., delivered the opinionof the Court, in which KENNEDY,SOUTER, GINSBURG, and BREYER,JJ., joined. KENNEDY, J., filed aconcurring opinion, post, p. 2669.O’CONNOR, J., filed a dissenting opinion,in which REHNQUIST, C. J., andSCALIA and THOMAS, JJ., joined, post,p. 2671. THOMAS, J., filed a dissentingopinion, post, p. 2677.

ON WRIT OF CERTIORARI TO THESUPREME COURT OF CONNECTI-CUT

Institute for Justice, William H. Mellor,Scott G. Bullock, Counsel of Record, DanaBerliner, Steven Simpson, Washington,DC, Sawyer Law Firm, LLC, Scott W.Sawyer, New London, CT, Counsel forPetitioners.

Wesley W. Horton, Counsel of Record,Daniel J. Krisch, Horton, Shields & Knox,P.C., Hartford, CT, Thomas J. Londregan,Jeffrey T. Londregan, Conway & Londre-gan, P.C., New London, CT, Edward B.O’Connell, David P. Condon, Waller, Smith& Palmer, P.C., New London, CT, Counselfor the Respondents.

For U.S. Supreme Court briefs, see:

2004 WL 2811059 (Pet.Brief)

2005 WL 429976 (Resp.Brief)

2005 WL 353691 (Reply.Brief)

Justice STEVENS delivered the opinionof the Court.

S 472In 2000, the city of New London ap-proved a development plan that, in thewords of the Supreme Court of Connecti-cut, was ‘‘projected to create in excess of1,000 jobs, to increase tax and other reve-nues, and to revitalize an economically dis-tressed city, including its downtown andwaterfront areas.’’ 268 Conn. 1, 5, 843A.2d 500, 507 (2004). In assembling theland needed for this project, the city’sdevelopment agent has purchased proper-ty from willing sellers and proposes to usethe power of eminent domain to acquirethe remainder of the property from unwill-ing owners in exchange for just compensa-tion. The question presented is whetherthe city’s proposed disposition of this prop-erty qualifies as a ‘‘public use’’ within themeaning of the Takings Clause of the FifthAmendment to the Constitution.1

S 473I

The city of New London (hereinafterCity) sits at the junction of the ThamesRiver and the Long Island Sound in south-eastern Connecticut. Decades of economicdecline led a state agency in 1990 to desig-nate the City a ‘‘distressed municipality.’’In 1996, the Federal Government closedthe Naval Undersea Warfare Center,which had been located in the Fort Trum-bull area of the City and had employedover 1,500 people. In 1998, the City’sunemployment rate was nearly double thatof the State, and its population of justunder 24,000 residents was at its lowestsince 1920.

These conditions prompted state and lo-cal officials to target New London, and

1. ‘‘[N]or shall private property be taken forpublic use, without just compensation.’’ U.S.Const., Amdt. 5. That Clause is made applica-ble to the States by the Fourteenth Amend-

ment. See Chicago, B. & Q.R. Co. v. Chicago,166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979(1897).


545 U.S. 475

particularly its Fort Trumbull area, foreconomic revitalization. To this end, re-spondent New London Development Cor-poration (NLDC), a private nonprofit enti-ty established some years earlier to assistthe City in planning economic develop-ment, was reactivated. In January 1998,the State authorized a $5.35 million bondissue to support the NLDC’s planning ac-tivities and a $10 million bond issue towardthe creation of a Fort Trumbull StatePark. In February, the pharmaceuticalcompany Pfizer Inc. announced that itwould build a $300 million research facilityon a site immediately adjacent to FortTrumbull; local planners hoped that Pfizerwould draw new business to the area,thereby serving as a catalyst to the area’srejuvenation. After receiving initial ap-proval from the city council, the NLDCcontinued its planning activities and held aseries of neighborhood meetings to edu-cate the public about the process. In May,the city council authorized the NLDC toformally submit its plans to the relevantstate agencies for review.2 Upon obtain-ing state-level approval, the NLDCS 474finalized an integrated developmentplan focused on 90 acres of the Fort Trum-bull area.

The Fort Trumbull area is situated on apeninsula that juts into the Thames River.The area comprises approximately 115 pri-vately owned properties, as well as the 32acres of land formerly occupied by thenaval facility (Trumbull State Park nowoccupies 18 of those 32 acres). The devel-opment plan encompasses seven parcels.Parcel 1 is designated for a waterfrontconference hotel at the center of a ‘‘smallurban village’’ that will include restaurants

and shopping. This parcel will also havemarinas for both recreational and commer-cial uses. A pedestrian ‘‘riverwalk’’ willoriginate here and continue down thecoast, connecting the waterfront areas ofthe development. Parcel 2 will be the siteof approximately 80 new residences orga-nized into an urban neighborhood andlinked by public walkway to the remainderof the development, including the statepark. This parcel also includes space re-served for a new U.S. Coast Guard Muse-um. Parcel 3, which is located immediate-ly north of the Pfizer facility, will containat least 90,000 square feet of research anddevelopment office space. Parcel 4A is a2.4–acre site that will be used either tosupport the adjacent state park, by provid-ing parking or retail services for visitors,or to support the nearby marina. Parcel4B will include a renovated marina, as wellas the final stretch of the riverwalk. Par-cels 5, 6, and 7 will provide land for officeand retail space, parking, and water-de-pendent commercial uses. App. 109–113.

The NLDC intended the developmentplan to capitalize on the arrival of thePfizer facility and the new commerce itwas expected to attract. In addition tocreating jobs, generating tax revenue, andhelping to ‘‘build momentum for the revi-talization of downtown New London,’’ id.,at 92, the plan was also designed to makethe City more attractive and to createS 475leisure and recreational opportunities onthe waterfront and in the park.

The city council approved the plan inJanuary 2000, and designated the NLDCas its development agent in charge of im-plementation. See Conn. Gen.Stat. § 8–

2. Various state agencies studied the project’seconomic, environmental, and social ramifi-cations. As part of this process, a team ofconsultants evaluated six alternative develop-ment proposals for the area, which varied inextensiveness and emphasis. The Office of

Policy and Management, one of the primarystate agencies undertaking the review, madefindings that the project was consistent withrelevant state and municipal developmentpolicies. See App. 89–95.


188 (2005). The city council also author-ized the NLDC to purchase property or toacquire property by exercising eminent do-main in the City’s name. § 8–193. TheNLDC successfully negotiated the pur-chase of most of the real estate in the 90–acre area, but its negotiations with peti-tioners failed. As a consequence, in No-vember 2000, the NLDC initiated the con-demnation proceedings that gave rise tothis case.3

II

Petitioner Susette Kelo has lived in theFort Trumbull area since 1997. She hasmade extensive improvements to herhouse, which she prizes for its water view.Petitioner Wilhelmina Dery was born inher Fort Trumbull house in 1918 and haslived there her entire life. Her husbandCharles (also a petitioner) has lived in thehouse since they married some 60 yearsago. In all, the nine petitioners own 15properties in Fort Trumbull—4 in parcel 3of the development plan and 11 in parcel4A. Ten of the parcels are occupied by theowner or a family member; the other fiveare held as investment properties. Thereis no allegation that any of these proper-ties is blighted or otherwise in poor condi-tion; rather, they were condemned onlybecause they happen to be located in thedevelopment area.

In December 2000, petitioners broughtthis action in the New London SuperiorCourt. They claimed, among other things,that the taking of their properties wouldviolate the ‘‘public use’’ restriction in the

Fifth Amendment. After a 7–day benchtrial, the Superior Court granted a perma-nent restraining order prohibiting the tak-ing of the properties loScated476 in parcel 4A(park or marina support). It, however,denied petitioners relief as to the proper-ties located in parcel 3 (office space). App.to Pet. for Cert. 343–350.4

After the Superior Court ruled, bothsides took appeals to the Supreme Courtof Connecticut. That court held, over adissent, that all of the City’s proposedtakings were valid. It began by upholdingthe lower court’s determination that thetakings were authorized by chapter 132,the State’s municipal development statute.See Conn. Gen.Stat. § 8–186 et seq. (2005).That statute expresses a legislative deter-mination that the taking of land, even de-veloped land, as part of an economic devel-opment project is a ‘‘public use’’ and in the‘‘public interest.’’ 268 Conn., at 18–28, 843A.2d, at 515–521. Next, relying on casessuch as Hawaii Housing Authority v.Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81L.Ed.2d 186 (1984), and Berman v. Par-ker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27(1954), the court held that such economicdevelopment qualified as a valid public useunder both the Federal and State Consti-tutions. 268 Conn., at 40, 843 A.2d, at 527.

Finally, adhering to its precedents, thecourt went on to determine, first, whetherthe takings of the particular properties atissue were ‘‘reasonably necessary’’ toachieving the City’s intended public use,id., at 82–84, 843 A.2d, at 552–553, and,second, whether the takings were for ‘‘rea-

3. In the remainder of the opinion we willdifferentiate between the City and the NLDConly where necessary.

4. While this litigation was pending before theSuperior Court, the NLDC announced that itwould lease some of the parcels to privatedevelopers in exchange for their agreement todevelop the land according to the terms of the

development plan. Specifically, the NLDCwas negotiating a 99–year ground lease withCorcoran Jennison, a developer selected froma group of applicants. The negotiations con-templated a nominal rent of $1 per year, butno agreement had yet been signed. See 268Conn. 1, 9, 61, 843 A.2d 500, 509–510, 540(2004).


545 U.S. 478

sonably foreseeable needs,’’ id., at 93–94,843 A.2d, at 558–559. The court upheldthe trial court’s factual findings as to par-cel 3, but reversed the trial court as toparcel 4A, agreeing with the City that theintended use of this land was sufficientlyS 477definite and had been given ‘‘reasonableattention’’ during the planning process.Id., at 120–121, 843 A.2d, at 574.

The three dissenting justices would haveimposed a ‘‘heightened’’ standard of judi-cial review for takings justified by econom-ic development. Although they agreedthat the plan was intended to serve a validpublic use, they would have found all thetakings unconstitutional because the Cityhad failed to adduce ‘‘clear and convincingevidence’’ that the economic benefits of theplan would in fact come to pass. Id., at144, 146, 843 A.2d, at 587, 588 (Zarella, J.,joined by Sullivan, C. J., and Katz, J.,concurring in part and dissenting in part).

We granted certiorari to determinewhether a city’s decision to take propertyfor the purpose of economic developmentsatisfies the ‘‘public use’’ requirement ofthe Fifth Amendment. 542 U.S. 965, 125S.Ct. 27, 159 L.Ed.2d 857 (2004).

III

[1, 2] Two polar propositions are per-fectly clear. On the one hand, it has longbeen accepted that the sovereign may nottake the property of A for the sole purpose

of transferring it to another private partyB, even though A is paid just compensa-tion. On the other hand, it is equally clearthat a State may transfer property fromone private party to another if future ‘‘useby the public’’ is the purpose of the taking;the condemnation of land for a railroadwith common-carrier duties is a familiarexample. Neither of these propositions,however, determines the disposition of thiscase.

[3] As for the first proposition, theCity would no doubt be forbidden fromtaking petitioners’ land for the purpose ofconferring a private benefit on a particularprivate party. See Midkiff, 467 U.S., at245, 104 S.Ct. 2321 (‘‘A purely private tak-ing could not withstand the scrutiny of thepublic use requirement; it would serve nolegitimate purpose of government andwould thus be void’’); Missouri Pacific R.Co. v. Nebraska, S 478164 U.S. 403, 17 S.Ct.130, 41 L.Ed. 489 (1896).5 Nor would theCity be allowed to take property under themere pretext of a public purpose, when itsactual purpose was to bestow a privatebenefit. The takings before us, however,would be executed pursuant to a ‘‘carefullyconsidered’’ development plan. 268 Conn.,at 54, 843 A.2d, at 536. The trial judgeand all the members of the Supreme Courtof Connecticut agreed that there was noevidence of an illegitimate purpose in thiscase.6 Therefore, as was true of the stat-

5. See also Calder v. Bull, 3 Dall. 386, 388, 1L.Ed. 648 (1798) (‘‘An ACT of the Legislature(for I cannot call it a law) contrary to thegreat first principles of the social compact,cannot be considered a rightful exercise oflegislative authorityTTTT A few instances willsuffice to explain what I meanTTTT [A] lawthat takes property from A. and gives it to B:It is against all reason and justice, for apeople to entrust a Legislature with SUCH pow-ers; and, therefore, it cannot be presumedthat they have done it. The genius, the na-ture, and the spirit, of our State Governments,amount to a prohibition of such acts of legis-

lation; and the general principles of law andreason forbid them’’ (emphasis deleted)).

6. See 268 Conn., at 159, 843 A.2d, at 595(Zarella, J., concurring in part and dissentingin part) (‘‘The record clearly demonstratesthat the development plan was not intendedto serve the interests of Pfizer, Inc., or anyother private entity, but rather, to revitalizethe local economy by creating temporary andpermanent jobs, generating a significant in-crease in tax revenue, encouraging spin-offeconomic activities and maximizing publicaccess to the waterfront’’). And while the


ute challenged in Midkiff, 467 U.S., at 245,104 S.Ct. 2321, the City’s developmentplan was not adopted ‘‘to benefit a particu-lar class of identifiable individuals.’’

On the other hand, this is not a case inwhich the City is planning to open thecondemned land—at least not in its entire-ty—to use by the general public. Nor willthe private lessees of the land in any sensebe required to operate like common carri-ers, making their services available to allcomSers.479 But although such a projecteduse would be sufficient to satisfy the publicuse requirement, this ‘‘Court long ago re-jected any literal requirement that con-demned property be put into use for thegeneral public.’’ Id., at 244, 104 S.Ct.2321. Indeed, while many state courts inthe mid–19th century endorsed ‘‘use by thepublic’’ as the proper definition of public

use, that narrow view steadily eroded overtime. Not only was the ‘‘use by the pub-lic’’ test difficult to administer (e.g., whatproportion of the public need have accessto the property? at what price?),7 but itproved to be impractical given the diverseand always evolving needs of society.8 Ac-cordingly, S 480when this Court began apply-ing the Fifth Amendment to the States atthe close of the 19th century, it embracedthe broader and more natural interpreta-tion of public use as ‘‘public purpose.’’See, e.g., Fallbrook Irrigation Dist. v.Bradley, 164 U.S. 112, 158–164, 17 S.Ct.56, 41 L.Ed. 369 (1896). Thus, in a caseupholding a mining company’s use of anaerial bucket line to transport ore overproperty it did not own, Justice Holmes’opinion for the Court stressed ‘‘the inade-quacy of use by the general public as a

City intends to transfer certain of the parcelsto a private developer in a long-term lease—which developer, in turn, is expected to leasethe office space and so forth to other privatetenants—the identities of those private partieswere not known when the plan was adopted.It is, of course, difficult to accuse the govern-ment of having taken A’s property to benefitthe private interests of B when the identity ofB was unknown.

7. See, e.g., Dayton Gold & Silver Mining Co. v.Seawell, 11 Nev. 394, 410, 1876 WL 4573, *11(1876) (‘‘If public occupation and enjoymentof the object for which land is to be con-demned furnishes the only and true test forthe right of eminent domain, then the legisla-ture would certainly have the constitutionalauthority to condemn the lands of any privatecitizen for the purpose of building hotels andtheaters. Why not? A hotel is used by thepublic as much as a railroad. The publichave the same right, upon payment of a fixedcompensation, to seek rest and refreshment ata public inn as they have to travel upon arailroad’’).

8. From upholding the Mill Acts (which au-thorized manufacturers dependent on power-producing dams to flood upstream lands inexchange for just compensation), to approv-ing takings necessary for the economic devel-opment of the West through mining and irri-

gation, many state courts either circumventedthe ‘‘use by the public’’ test when necessaryor abandoned it completely. See Nichols,The Meaning of Public Use in the Law ofEminent Domain, 20 B.U.L.Rev. 615, 619–624 (1940) (tracing this development and col-lecting cases). For example, in rejecting the‘‘use by the public’’ test as overly restrictive,the Nevada Supreme Court stressed that‘‘[m]ining is the greatest of the industrial pur-suits in this state. All other interests aresubservient to it. Our mountains are almostbarren of timber, and our valleys could neverbe made profitable for agricultural purposesexcept for the fact of a home market havingbeen created by the mining developments indifferent sections of the state. The miningand milling interests give employment tomany men, and the benefits derived from thisbusiness are distributed as much, and some-times more, among the laboring classes thanwith the owners of the mines and mills. TTT

The present prosperity of the state is entirelydue to the mining developments alreadymade, and the entire people of the state aredirectly interested in having the future devel-opments unobstructed by the obstinate actionof any individual or individuals.’’ DaytonGold & Silver Mining Co., 11 Nev., at 409–410, 1876 WL, at *11.


545 U.S. 482

universal test.’’ Strickley v. HighlandBoy Gold Mining Co., 200 U.S. 527, 531,26 S.Ct. 301, 50 L.Ed. 581 (1906).9 Wehave repeatedly and consistently rejectedthat narrow test ever since.10

[4] The disposition of this case there-fore turns on the question whether theCity’s development plan serves a ‘‘publicpurpose.’’ Without exception, our caseshave defined that concept broadly, reflect-ing our longstanding policy of deference tolegislative judgments in this field.

In Berman v. Parker, 348 U.S. 26, 75S.Ct. 98, 99 L.Ed. 27 (1954), this Courtupheld a redevelopment plan targeting ablighted area of Washington, D. C., inwhich most of the housing for the area’s5,000 inhabitants was beyond repair. Un-der the plan, the area would be condemnedand part of it utilized for the constructionof streets, schools, and other public facili-ties. The remainder of the land would beleased or sold to private parties for thepurpose of redevelopment, including theconstruction of low-cost housing.

S 481The owner of a department store lo-cated in the area challenged the condem-nation, pointing out that his store was notitself blighted and arguing that the cre-ation of a ‘‘better balanced, more attractivecommunity’’ was not a valid public use.Id., at 31, 75 S.Ct. 98. Writing for aunanimous Court, Justice Douglas refusedto evaluate this claim in isolation, defer-ring instead to the legislative and agencyjudgment that the area ‘‘must be plannedas a whole’’ for the plan to be successful.Id., at 34, 75 S.Ct. 98. The Court ex-

plained that ‘‘community redevelopmentprograms need not, by force of the Consti-tution, be on a piecemeal basis—lot by lot,building by building.’’ Id., at 35, 75 S.Ct.98. The public use underlying the takingwas unequivocally affirmed:

‘‘We do not sit to determine whether aparticular housing project is or is notdesirable. The concept of the publicwelfare is broad and inclusiveTTTT Thevalues it represents are spiritual as wellas physical, aesthetic as well as mone-tary. It is within the power of thelegislature to determine that the com-munity should be beautiful as well ashealthy, spacious as well as clean, well-balanced as well as carefully patrolled.In the present case, the Congress andits authorized agencies have made deter-minations that take into account a widevariety of values. It is not for us toreappraise them. If those who governthe District of Columbia decide that theNation’s Capital should be beautiful aswell as sanitary, there is nothing in theFifth Amendment that stands in theway.’’ Id., at 33, 75 S.Ct. 98.

In Hawaii Housing Authority v. Mid-kiff, 467 U.S. 229, 104 S.Ct. 2321, 81L.Ed.2d 186 (1984), the Court considered aHawaii statute whereby fee title was takenfrom lessors and transferred to lessees(for just compensation) in order to reducethe concentration of land ownership. Weunanimously upheld the statute and reject-ed the Ninth Circuit’s view that it was ‘‘anaked attempt on the part of the state ofHawaii to take the property of A S 482and

9. See also Clark v. Nash, 198 U.S. 361, 25S.Ct. 676, 49 L.Ed. 1085 (1905) (upholding astatute that authorized the owner of arid landto widen a ditch on his neighbor’s property soas to permit a nearby stream to irrigate hisland).

10. See, e.g., Mt. Vernon–Woodberry CottonDuck Co. v. Alabama Interstate Power Co., 240

U.S. 30, 32, 36 S.Ct. 234, 60 L.Ed. 507 (1916)(‘‘The inadequacy of use by the general publicas a universal test is established’’); Ruckel-shaus v. Monsanto Co., 467 U.S. 986, 1014–1015, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984)(‘‘This Court, however, has rejected the notionthat a use is a public use only if the propertytaken is put to use for the general public’’).


transfer it to B solely for B’s private useand benefit.’’ Id., at 235, 104 S.Ct. 2321(internal quotation marks omitted). Reaf-firming Berman’s deferential approach tolegislative judgments in this field, we con-cluded that the State’s purpose of eliminat-ing the ‘‘social and economic evils of a landoligopoly’’ qualified as a valid public use.467 U.S., at 241–242, 104 S.Ct. 2321. Ouropinion also rejected the contention thatthe mere fact that the State immediatelytransferred the properties to private indi-viduals upon condemnation somehow di-minished the public character of the tak-ing. ‘‘[I]t is only the taking’s purpose, andnot its mechanics,’’ we explained, that mat-ters in determining public use. Id., at 244,104 S.Ct. 2321.

In that same Term we decided anotherpublic use case that arose in a purelyeconomic context. In Ruckelshaus v.Monsanto Co., 467 U.S. 986, 104 S.Ct.2862, 81 L.Ed.2d 815 (1984), the Courtdealt with provisions of the Federal Insec-ticide, Fungicide, and Rodenticide Act un-der which the Environmental ProtectionAgency could consider the data (includingtrade secrets) submitted by a prior pesti-cide applicant in evaluating a subsequentapplication, so long as the second applicantpaid just compensation for the data. Weacknowledged that the ‘‘most direct benefi-ciaries’’ of these provisions were the subse-quent applicants, id., at 1014, 104 S.Ct.2862, but we nevertheless upheld the stat-

ute under Berman and Midkiff. We foundsufficient Congress’ belief that sparing ap-plicants the cost of time-consuming re-search eliminated a significant barrier toentry in the pesticide market and therebyenhanced competition. 467 U.S., at 1015,104 S.Ct. 2862.

Viewed as a whole, our jurisprudencehas recognized that the needs of societyhave varied between different parts of theNation, just as they have evolved overtime in response to changed circum-stances. Our earliest cases in particularembodied a strong theme of federalism,emphasizing the ‘‘great respect’’ that weowe to state legislatures and state courtsin discerning local public needs. SeeHairston v. Danville & Western R. Co.,208 U.S. 598, 606–607, 28 S.Ct. 331, 52L.Ed. 637 (1908) S 483(noting that theseneeds were likely to vary depending on aState’s ‘‘resources, the capacity of the soil,the relative importance of industries to thegeneral public welfare, and the long-estab-lished methods and habits of the peo-ple’’).11 For more than a century, ourpublic use jurisprudence has wisely es-chewed rigid formulas and intrusive scruti-ny in favor of affording legislatures broadlatitude in determining what public needsjustify the use of the takings power.

IV

Those who govern the City were notconfronted with the need to remove blight

11. See also Clark, 198 U.S., at 367–368, 25S.Ct. 676; Strickley v. Highland Boy GoldMining Co., 200 U.S. 527, 531, 26 S.Ct. 301,50 L.Ed. 581 (1906) (‘‘In the opinion of thelegislature and the Supreme Court of Utahthe public welfare of that State demands thataerial lines between the mines upon its moun-tain sides and railways in the valleys belowshould not be made impossible by the refusalof a private owner to sell the right to cross hisland. The Constitution of the United Statesdoes not require us to say that they arewrong’’); O’Neill v. Leamer, 239 U.S. 244,

253, 36 S.Ct. 54, 60 L.Ed. 249 (1915) (‘‘Statesmay take account of their special exigencies,and when the extent of their arid or wet landsis such that a plan for irrigation or reclama-tion according to districts may fairly be re-garded as one which promotes the publicinterest, there is nothing in the Federal Con-stitution which denies to them the right toformulate this policy or to exercise the powerof eminent domain in carrying it into effect.With the local situation the state court ispeculiarly familiar and its judgment is entitledto the highest respect’’).


545 U.S. 485

in the Fort Trumbull area, but their deter-mination that the area was sufficiently dis-tressed to justify a program of economicrejuvenation is entitled to our deference.The City has carefully formulated an eco-nomic development plan that it believeswill provide appreciable benefits to thecommunity, including—but by no meanslimited to—new jobs and increased taxrevenue. As with other exercises in urbanplanning and development,12 the City isendeavoring to coordinate a variety ofcommercial, residential, and recreationaluses of land, with the hope that they willform a whole greater than the sum of itsparts. To efSfectuate484 this plan, the Cityhas invoked a state statute that specificallyauthorizes the use of eminent domain topromote economic development. Giventhe comprehensive character of the plan,the thorough deliberation that preceded itsadoption, and the limited scope of our re-view, it is appropriate for us, as it was inBerman, to resolve the challenges of theindividual owners, not on a piecemeal ba-sis, but rather in light of the entire plan.Because that plan unquestionably serves apublic purpose, the takings challengedhere satisfy the public use requirement ofthe Fifth Amendment.

[5] To avoid this result, petitionersurge us to adopt a new bright-line rulethat economic development does not quali-

fy as a public use. Putting aside the un-persuasive suggestion that the City’s planwill provide only purely economic benefits,neither precedent nor logic supports peti-tioners’ proposal. Promoting economic de-velopment is a traditional and long-accept-ed function of government. There is,moreover, no principled way of distinguish-ing economic development from the otherpublic purposes that we have recognized.In our cases upholding takings that facili-tated agriculture and mining, for example,we emphasized the importance of thoseindustries to the welfare of the States inquestion, see, e.g., Strickley, 200 U.S. 527,26 S.Ct. 301; in Berman, we endorsed thepurpose of transforming a blighted areainto a ‘‘well-balanced’’ community throughredevelopment, 348 U.S., at 33, 75 S.Ct.98; 13 in Midkiff, S 485we upheld the interestin breaking up a land oligopoly that ‘‘creat-ed artificial deterrents to the normal func-tioning of the State’s residential land mar-ket,’’ 467 U.S., at 242, 104 S.Ct. 2321; andin Monsanto, we accepted Congress’ pur-pose of eliminating a ‘‘significant barrier toentry in the pesticide market,’’ 467 U.S., at1014–1015, 104 S.Ct. 2862. It would beincongruous to hold that the City’s interestin the economic benefits to be derivedfrom the development of the Fort Trum-bull area has less of a public characterthan any of those other interests. Clearly,there is no basis for exempting economic

12. Cf. Village of Euclid v. Ambler Realty Co.,272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303(1926).

13. It is a misreading of Berman to suggestthat the only public use upheld in that casewas the initial removal of blight. See ReplyBrief for Petitioners 8. The public use de-scribed in Berman extended beyond that toencompass the purpose of developing thatarea to create conditions that would prevent areversion to blight in the future. See 348U.S., at 34–35, 75 S.Ct. 98 (‘‘It was notenough, [the experts] believed, to remove ex-isting buildings that were insanitary or un-

sightly. It was important to redesign thewhole area so as to eliminate the conditionsthat cause slumsTTTT The entire area neededredesigning so that a balanced, integratedplan could be developed for the region, in-cluding not only new homes, but also schools,churches, parks, streets, and shopping cen-ters. In this way it was hoped that the cycleof decay of the area could be controlled andthe birth of future slums prevented’’). Hadthe public use in Berman been defined morenarrowly, it would have been difficult to justi-fy the taking of the plaintiff’s nonblighteddepartment store.


development from our traditionally broadunderstanding of public purpose.

Petitioners contend that using eminentdomain for economic development imper-missibly blurs the boundary between pub-lic and private takings. Again, our casesforeclose this objection. Quite simply, thegovernment’s pursuit of a public purposewill often benefit individual private parties.For example, in Midkiff, the forced trans-fer of property conferred a direct and sig-nificant benefit on those lessees who werepreviously unable to purchase their homes.In Monsanto, we recognized that the‘‘most direct beneficiaries’’ of the data-sharing provisions were the subsequentpesticide applicants, but benefiting them inthis way was necessary to promoting com-petition in the pesticide market. 467 U.S.,at 1014, 104 S.Ct. 2862.14 The owner ofthe department store in S 486Berman object-

ed to ‘‘taking from one businessman forthe benefit of another businessman,’’ 348U.S., at 33, 75 S.Ct. 98, referring to thefact that under the redevelopment planland would be leased or sold to privatedevelopers for redevelopment.15 Our re-jection of that contention has particularrelevance to the instant case: ‘‘The publicend may be as well or better servedthrough an agency of private enterprisethan through a department of govern-ment—or so the Congress might conclude.We cannot say that public ownership is thesole method of promoting the public pur-poses of community redevelopment pro-jects.’’ Id., at 33–34, 75 S.Ct. 98.16

It is further argued that without abright-line rule nothing would stop a cityfrom transferring citizen A’s property toS 487citizen B for the sole reason that citizenB will put the property to a more produc-

14. Any number of cases illustrate that theachievement of a public good often coincideswith the immediate benefiting of private par-ties. See, e.g., National Railroad PassengerCorporation v. Boston & Maine Corp., 503U.S. 407, 422, 112 S.Ct. 1394, 118 L.Ed.2d 52(1992) (public purpose of ‘‘facilitating Am-trak’s rail service’’ served by taking rail trackfrom one private company and transferring itto another private company); Brown v. LegalFoundation of Wash., 538 U.S. 216, 123 S.Ct.1406, 155 L.Ed.2d 376 (2003) (provision oflegal services to the poor is a valid publicpurpose). It is worth noting that in HawaiiHousing Authority v. Midkiff, 467 U.S. 229,104 S.Ct. 2321, 81 L.Ed.2d 186 (1984), Mon-santo, and Boston & Maine Corp., the proper-ty in question retained the same use evenafter the change of ownership.

15. Notably, as in the instant case, the privatedevelopers in Berman were required by con-tract to use the property to carry out theredevelopment plan. See 348 U.S., at 30, 75S.Ct. 98.

16. Nor do our cases support Justice O’CON-NOR’s novel theory that the government mayonly take property and transfer it to privateparties when the initial taking eliminates

some ‘‘harmful property use.’’ Post, at 2675(dissenting opinion). There was nothing‘‘harmful’’ about the nonblighted departmentstore at issue in Berman, 348 U.S. 26, 75 S.Ct.98; see also n. 13, supra; nothing ‘‘harmful’’about the lands at issue in the mining andagriculture cases, see, e.g., Strickley, 200 U.S.527, 26 S.Ct. 301; see also nn. 9, 11, supra;and certainly nothing ‘‘harmful’’ about thetrade secrets owned by the pesticide manufac-turers in Monsanto, 467 U.S. 986, 104 S.Ct.2862. In each case, the public purpose weupheld depended on a private party’s futureuse of the concededly nonharmful propertythat was taken. By focusing on a property’sfuture use, as opposed to its past use, ourcases are faithful to the text of the TakingsClause. See U.S. Const., Amdt. 5. (‘‘[N]orshall private property be taken for public use,without just compensation’’). Justice O’CON-NOR’s intimation that a ‘‘public purpose’’may not be achieved by the action of privateparties, see post, at 2675, confuses the purposeof a taking with its mechanics, a mistake wewarned of in Midkiff, 467 U.S., at 244, 104S.Ct. 2321. See also Berman, 348 U.S., at33–34, 75 S.Ct. 98 (‘‘The public end may be aswell or better served through an agency ofprivate enterprise than through a departmentof government’’).


545 U.S. 488

tive use and thus pay more taxes. Such aone-to-one transfer of property, executedoutside the confines of an integrated devel-opment plan, is not presented in this case.While such an unusual exercise of govern-ment power would certainly raise a suspi-cion that a private purpose was afoot,17 thehypothetical cases posited by petitionerscan be confronted if and when they arise.18

They do not warrant the crafting of anartificial restriction on the concept of pub-lic use.19

[6] Alternatively, petitioners maintainthat for takings of this kind we shouldrequire a ‘‘reasonable certainty’’ that theexpected public benefits will actually ac-crue. Such a rule, however, would repre-sent an even greater departure fromS 488our precedent. ‘‘When the legislature’s

purpose is legitimate and its means arenot irrational, our cases make clear thatempirical debates over the wisdom of tak-ings—no less than debates over the wis-dom of other kinds of socioeconomic legis-lation—are not to be carried out in thefederal courts.’’ Midkiff, 467 U.S., at 242–243, 104 S.Ct. 2321.20 Indeed, earlier thisTerm we explained why similar practicalconcerns (among others) undermined theuse of the ‘‘substantially advances’’ formu-la in our regulatory takings doctrine. SeeLingle v. Chevron U.S.A. Inc., 544 U.S.528, 544, 125 S.Ct. 2074, 2085, 161 L.Ed.2d876 (2005) (noting that this formula ‘‘wouldempower—and might often require—courts to substitute their predictive judg-ments for those of elected legislatures andexpert agencies’’). The disadvantages of a

17. Courts have viewed such aberrations witha skeptical eye. See, e.g., 99 Cents OnlyStores v. Lancaster Redevelopment Agency, 237F.Supp.2d 1123 (C.D.Cal.2001); cf. Cincin-nati v. Vester, 281 U.S. 439, 448, 50 S.Ct. 360,74 L.Ed. 950 (1930) (taking invalid understate eminent domain statute for lack of areasoned explanation). These types of takingsmay also implicate other constitutional guar-antees. See Village of Willowbrook v. Olech,528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d1060 (2000) (per curiam).

18. Cf. Panhandle Oil Co. v. Mississippi ex rel.Knox, 277 U.S. 218, 223, 48 S.Ct. 451, 72L.Ed. 857 (1928) (Holmes, J., dissenting)(‘‘The power to tax is not the power to destroywhile this Court sits’’).

19. A parade of horribles is especially unper-suasive in this context, since the TakingsClause largely ‘‘operates as a conditional limi-tation, permitting the government to do whatit wants so long as it pays the charge.’’ East-ern Enterprises v. Apfel, 524 U.S. 498, 545,118 S.Ct. 2131, 141 L.Ed.2d 451 (1998)(KENNEDY, J., concurring in judgment anddissenting in part). Speaking of the takingspower, Justice Iredell observed that ‘‘[i]t isnot sufficient to urge, that the power may beabused, for, such is the nature of all power,—such is the tendency of every human institu-tion: and, it might as fairly be said, that thepower of taxation, which is only circum-

scribed by the discretion of the Body, inwhich it is vested, ought not to be granted,because the Legislature, disregarding its trueobjects, might, for visionary and useless pro-jects, impose a tax to the amount of nineteenshillings in the pound. We must be contentto limit power where we can, and where wecannot, consistently with its use, we must becontent to repose a salutory confidence.’’Calder, 3 Dall., at 400, 1 L.Ed. 648 (opinionconcurring in result).

20. See also Boston & Maine Corp., 503 U.S.,at 422–423, 112 S.Ct. 1394 (‘‘[W]e need notmake a specific factual determination wheth-er the condemnation will accomplish its ob-jectives’’); Monsanto, 467 U.S., at 1015, n.18, 104 S.Ct. 2862 (‘‘Monsanto argues thatEPA and, by implication, Congress, misappre-hended the true ‘barriers to entry’ in thepesticide industry and that the challengedprovisions of the law create, rather than re-duce, barriers to entryTTTT Such economicarguments are better directed to Congress.The proper inquiry before this Court is notwhether the provisions in fact will accomplishtheir stated objectives. Our review is limitedto determining that the purpose is legitimateand that Congress rationally could have be-lieved that the provisions would promote thatobjective’’).


heightened form of review are especiallypronounced in this type of case. Orderlyimplementation of a comprehensive rede-velopment plan obviously requires that thelegal rights of all interested parties beestablished before new construction can becommenced. A constitutional rule that re-quired postponement of the judicial ap-proval of every condemnation until thelikelihood of success of the plan had beenassured would unquestionably impose asignificant impediment to the successfulconsummation of many such plans.

[7] Just as we decline to second-guessthe City’s considered judgments about theefficacy of its development plan, we alsodecline to second-guess the City’s determi-nations as to what S 489lands it needs toacquire in order to effectuate the project.‘‘It is not for the courts to oversee thechoice of the boundary line nor to sit inreview on the size of a particular projectarea. Once the question of the public pur-pose has been decided, the amount andcharacter of land to be taken for the pro-ject and the need for a particular tract tocomplete the integrated plan rests in thediscretion of the legislative branch.’’ Ber-man, 348 U.S., at 35–36, 75 S.Ct. 98.

In affirming the City’s authority to takepetitioners’ properties, we do not minimizethe hardship that condemnations may en-tail, notwithstanding the payment of justcompensation.21 We emphasize that noth-ing in our opinion precludes any Statefrom placing further restrictions on its ex-ercise of the takings power. Indeed, manyStates already impose ‘‘public use’’ re-quirements that are stricter than the fed-eral baseline. Some of these requirementshave been established as a matter of stateconstitutional law,22 while others are ex-pressed in state eminent domain statutesthat carefully limit the grounds upon whichtakings may be exercised.23 As the sub-missions of the parties and their amicimake clear, the necessity and wisdom ofusing eminent domain to promote econom-ic development are certainly matters oflegitimate public debate.24 This Court’sauthority, S 490however, extends only to de-termining whether the City’s proposedcondemnations are for a ‘‘public use’’ with-in the meaning of the Fifth Amendment tothe Federal Constitution. Because over acentury of our case law interpreting thatprovision dictates an affirmative answer tothat question, we may not grant petition-ers the relief that they seek.

21. The amici raise questions about the fair-ness of the measure of just compensation.See, e.g., Brief for American Planning Associ-ation et al. as Amici Curiae 26–30. Whileimportant, these questions are not before usin this litigation.

22. See, e.g., County of Wayne v. Hathcock, 471Mich. 445, 684 N.W.2d 765 (2004).

23. Under California law, for instance, a citymay only take land for economic developmentpurposes in blighted areas. Cal. Health &Safety Code Ann. §§ 33030–33037 (West1999). See, e.g., Redevelopment Agency ofChula Vista v. Rados Bros., 95 Cal.App.4th309, 115 Cal.Rptr.2d 234 (2002).

24. For example, some argue that the need foreminent domain has been greatly exaggerated

because private developers can use numeroustechniques, including secret negotiations orprecommitment strategies, to overcome hold-out problems and assemble lands for genuine-ly profitable projects. See Brief for Jane Ja-cobs as Amicus Curiae 13–15; see also Brieffor John Norquist as Amicus Curiae. Othersargue to the contrary, urging that the need foreminent domain is especially great with re-gard to older, small cities like New London,where centuries of development have createdan extreme overdivision of land and thus areal market impediment to land assembly.See Brief for Connecticut Conference of Mu-nicipalities et al. as Amici Curiae 13, 21; seealso Brief for National League of Cities et al.as Amici Curiae.


545 U.S. 492

The judgment of the Supreme Court ofConnecticut is affirmed.

It is so ordered.

Justice KENNEDY, concurring.

I join the opinion for the Court and addthese further observations.

This Court has declared that a takingshould be upheld as consistent with thePublic Use Clause, U.S. Const., Amdt. 5,as long as it is ‘‘rationally related to aconceivable public purpose.’’ HawaiiHousing Authority v. Midkiff, 467 U.S.229, 241, 104 S.Ct. 2321, 81 L.Ed.2d 186(1984); see also Berman v. Parker, 348U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954).This deferential standard of review echoesthe rational-basis test used to review eco-nomic regulation under the Due Processand Equal Protection Clauses, see, e.g.,FCC v. Beach Communications, Inc., 508U.S. 307, 313–314, 113 S.Ct. 2096, 124L.Ed.2d 211 (1993); Williamson v. LeeOptical of Okla., Inc., 348 U.S. 483, 75S.Ct. 461, 99 L.Ed. 563 (1955). The deter-mination that a rational-basis standard ofreview is appropriate does not, however,alter the fact that transfers intended toconfer benefits on particular, favored pri-vate entities, and with only incidental orpretextual public benefits, are forbiddenby the Public Use Clause.

S 491A court applying rational-basis reviewunder the Public Use Clause should strikedown a taking that, by a clear showing, isintended to favor a particular private par-ty, with only incidental or pretextual publicbenefits, just as a court applying rational-basis review under the Equal ProtectionClause must strike down a governmentclassification that is clearly intended toinjure a particular class of private parties,with only incidental or pretextual publicjustifications. See Cleburne v. CleburneLiving Center, Inc., 473 U.S. 432, 446–447,450, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985);

Department of Agriculture v. Moreno, 413U.S. 528, 533–536, 93 S.Ct. 2821, 37L.Ed.2d 782 (1973). As the trial court inthis case was correct to observe: ‘‘Wherethe purpose [of a taking] is economic de-velopment and that development is to becarried out by private parties or privateparties will be benefited, the court mustdecide if the stated public purpose—eco-nomic advantage to a city sorely in need ofit—is only incidental to the benefits thatwill be confined on private parties of adevelopment plan.’’ App. to Pet. for Cert.263. See also ante, at 2661–2662.

A court confronted with a plausible accu-sation of impermissible favoritism to pri-vate parties should treat the objection as aserious one and review the record to see ifit has merit, though with the presumptionthat the government’s actions were reason-able and intended to serve a public pur-pose. Here, the trial court conducted acareful and extensive inquiry into ‘‘wheth-er, in fact, the development plan is ofprimary benefit to TTT the developer [i.e.,Corcoran Jennison], and private busi-nesses which may eventually locate in theplan area [e.g., Pfizer], and in that regard,only of incidental benefit to the city.’’App. to Pet. for Cert. 261. The trial courtconsidered testimony from government of-ficials and corporate officers, id., at 266–271; documentary evidence of communica-tions between these parties, ibid.; respon-dents’ awareness of New London’s de-pressed economic condition and evidencecorroborating the validity of this concern,id., at 272–273, 278–279; the substantialcommitment of public S 492funds by theState to the development project beforemost of the private beneficiaries wereknown, id., at 276; evidence that respon-dents reviewed a variety of developmentplans and chose a private developer from agroup of applicants rather than picking outa particular transferee beforehand, id., at


273, 278; and the fact that the other pri-vate beneficiaries of the project are stillunknown because the office space pro-posed to be built has not yet been rented,id., at 278.

The trial court concluded, based onthese findings, that benefiting Pfizer wasnot ‘‘the primary motivation or effect ofthis development plan’’; instead, ‘‘the pri-mary motivation for [respondents] was totake advantage of Pfizer’s presence.’’ Id.,at 276. Likewise, the trial court concludedthat ‘‘[t]here is nothing in the record toindicate that TTT [respondents] were moti-vated by a desire to aid [other] particularprivate entities.’’ Id., at 278. See alsoante, at 2661–2662. Even the dissentingjustices on the Connecticut Supreme Courtagreed that respondents’ development planwas intended to revitalize the local econo-my, not to serve the interests of Pfizer,Corcoran Jennison, or any other privateparty. 268 Conn. 1, 159, 843 A.2d 500, 595(2004) (Zarella, J., concurring in part anddissenting in part). This case, then, sur-vives the meaningful rational-basis reviewthat in my view is required under thePublic Use Clause.

Petitioners and their amici argue thatany taking justified by the promotion ofeconomic development must be treated bythe courts as per se invalid, or at leastpresumptively invalid. Petitioners over-state the need for such a rule, however, bymaking the incorrect assumption that re-view under Berman and Midkiff imposesno meaningful judicial limits on the gov-ernment’s power to condemn any propertyit likes. A broad per se rule or a strongpresumption of invalidity, furthermore,would prohibit a large number of govern-ment takings that have the purpose andexpected effect of conferring substantialbenefits on the public at large and so donot offend the Public Use Clause.

S 493My agreement with the Court that apresumption of invalidity is not warranted

for economic development takings in gen-eral, or for the particular takings at issuein this case, does not foreclose the possibil-ity that a more stringent standard of re-view than that announced in Berman andMidkiff might be appropriate for a morenarrowly drawn category of takings.There may be private transfers in whichthe risk of undetected impermissible favor-itism of private parties is so acute that apresumption (rebuttable or otherwise) ofinvalidity is warranted under the PublicUse Clause. Cf. Eastern Enterprises v.Apfel, 524 U.S. 498, 549–550, 118 S.Ct.2131, 141 L.Ed.2d 451 (1998) (KENNEDY,J., concurring in judgment and dissentingin part) (heightened scrutiny for retroac-tive legislation under the Due ProcessClause). This demanding level of scrutiny,however, is not required simply becausethe purpose of the taking is economic de-velopment.

This is not the occasion for conjecture asto what sort of cases might justify a moredemanding standard, but it is appropriateto underscore aspects of the instant casethat convince me no departure from Ber-man and Midkiff is appropriate here.This taking occurred in the context of acomprehensive development plan meant toaddress a serious citywide depression, andthe projected economic benefits of the pro-ject cannot be characterized as de minim-is. The identities of most of the privatebeneficiaries were unknown at the time thecity formulated its plans. The city com-plied with elaborate procedural require-ments that facilitate review of the recordand inquiry into the city’s purposes. Insum, while there may be categories ofcases in which the transfers are so suspi-cious, or the procedures employed soprone to abuse, or the purported benefitsare so trivial or implausible, that courtsshould presume an impermissible private


545 U.S. 495

purpose, no such circumstances are pres-ent in this case.

* * *

For the foregoing reasons, I join in theCourt’s opinion.

Justice O’CONNOR, with whom THECHIEF JUSTICE, Justice SCALIA, andJustice THOMAS join, dissenting.

S 494Over two centuries ago, just after theBill of Rights was ratified, Justice Chasewrote:

‘‘An ACT of the Legislature (for I cannotcall it a law) contrary to the great firstprinciples of the social compact, cannotbe considered a rightful exercise of leg-islative authority TTT. A few instanceswill suffice to explain what I meanTTTT[A] law that takes property from A.and gives it to B: It is against all reasonand justice, for a people to entrust aLegislature with SUCH powers; and,therefore, it cannot be presumed thatthey have done it.’’ Calder v. Bull, 3Dall. 386, 388, 1 L.Ed. 648 (1798) (em-phasis deleted).

Today the Court abandons this long-held,basic limitation on government power.Under the banner of economic develop-ment, all private property is now vulnera-ble to being taken and transferred to an-other private owner, so long as it might beupgraded—i.e., given to an owner who willuse it in a way that the legislature deemsmore beneficial to the public—in the pro-cess. To reason, as the Court does, thatthe incidental public benefits resultingfrom the subsequent ordinary use of pri-vate property render economic develop-ment takings ‘‘for public use’’ is to washout any distinction between private andpublic use of property—and thereby effec-tively to delete the words ‘‘for public use’’from the Takings Clause of the FifthAmendment. Accordingly I respectfullydissent.

I

Petitioners are nine resident or invest-ment owners of 15 homes in the FortTrumbull neighborhood of New London,Connecticut. Petitioner Wilhelmina Dery,for example, lives in a house on WalbachStreet that has been in her family for over100 years. She was born in the house in1918; her husband, petitioner CharlesDery, moved into the house when theymarried in 1946. Their son lives next doorS 495with his family in the house he receivedas a wedding gift, and joins his parents inthis suit. Two petitioners keep rentalproperties in the neighborhood.

In February 1998, Pfizer Inc., the phar-maceuticals manufacturer, announced thatit would build a global research facilitynear the Fort Trumbull neighborhood.Two months later, New London’s citycouncil gave initial approval for the NewLondon Development Corporation (NLDC)to prepare the development plan at issuehere. The NLDC is a private, nonprofitcorporation whose mission is to assist thecity council in economic development plan-ning. It is not elected by popular vote,and its directors and employees are pri-vately appointed. Consistent with its man-date, the NLDC generated an ambitiousplan for redeveloping 90 acres of FortTrumbull in order to ‘‘complement the fa-cility that Pfizer was planning to build,create jobs, increase tax and other reve-nues, encourage public access to and use ofthe city’s waterfront, and eventually ‘buildmomentum’ for the revitalization of therest of the city.’’ App. to Pet. for Cert. 5.

Petitioners own properties in two of theplan’s seven parcels—Parcel 3 and Parcel4A. Under the plan, Parcel 3 is slated forthe construction of research and officespace as a market develops for such space.It will also retain the existing Italian Dra-matic Club (a private cultural organization)


though the homes of three plaintiffs in thatparcel are to be demolished. Parcel 4A isslated, mysteriously, for ‘‘ ‘park support.’ ’’Id., at 345–346. At oral argument, counselfor respondents conceded the vagueness ofthis proposed use, and offered that theparcel might eventually be used for park-ing. Tr. of Oral Arg. 36.

To save their homes, petitioners suedNew London and the NLDC, to whomNew London has delegated eminent do-main power. Petitioners maintain that theFifth Amendment prohibits the NLDCfrom condemning their properties for thesake of an economic development plan.Petitioners are not holdouts; they do notseek increased compensation, and S 496noneis opposed to new development in the area.Theirs is an objection in principle: Theyclaim that the NLDC’s proposed use fortheir confiscated property is not a ‘‘public’’one for purposes of the Fifth Amendment.While the government may take theirhomes to build a road or a railroad or toeliminate a property use that harms thepublic, say petitioners, it cannot take theirproperty for the private use of other own-ers simply because the new owners maymake more productive use of the property.

II

The Fifth Amendment to the Constitu-tion, made applicable to the States by theFourteenth Amendment, provides that‘‘private property [shall not] be taken forpublic use, without just compensation.’’When interpreting the Constitution, we be-gin with the unremarkable presumptionthat every word in the document has inde-pendent meaning, ‘‘that no word was un-necessarily used, or needlessly added.’’Wright v. United States, 302 U.S. 583, 588,58 S.Ct. 395, 82 L.Ed. 439 (1938). Inkeeping with that presumption, we haveread the Fifth Amendment’s language toimpose two distinct conditions on the exer-

cise of eminent domain: ‘‘[T]he takingmust be for a ‘public use’ and ‘just com-pensation’ must be paid to the owner.’’Brown v. Legal Foundation of Wash., 538U.S. 216, 231–232, 123 S.Ct. 1406, 155L.Ed.2d 376 (2003).

These two limitations serve to protect‘‘the security of Property,’’ which Alexan-der Hamilton described to the Philadel-phia Convention as one of the ‘‘greatobj[ects] of Gov[ernment].’’ 1 Records ofthe Federal Convention of 1787, p. 302 (M.Farrand ed.1911). Together they ensurestable property ownership by providingsafeguards against excessive, unpredict-able, or unfair use of the government’seminent domain power—particularlyagainst those owners who, for whateverreasons, may be unable to protect them-selves in the political process against themajority’s will.

S 497While the Takings Clause presup-poses that government can take privateproperty without the owner’s consent, thejust compensation requirement spreadsthe cost of condemnations and thus ‘‘pre-vents the public from loading upon oneindividual more than his just share of theburdens of government.’’ MonongahelaNav. Co. v. United States, 148 U.S. 312,325, 13 S.Ct. 622, 37 L.Ed. 463 (1893); seealso Armstrong v. United States, 364 U.S.40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554(1960). The public use requirement, inturn, imposes a more basic limitation, cir-cumscribing the very scope of the eminentdomain power: Government may compelan individual to forfeit her property for thepublic’s use, but not for the benefit ofanother private person. This requirementpromotes fairness as well as security. Cf.Tahoe–Sierra Preservation Council, Inc.v. Tahoe Regional Planning Agency, 535U.S. 302, 336, 122 S.Ct. 1465, 152 L.Ed.2d517 (2002) (‘‘The concepts of ‘fairness andjustice’ TTT underlie the Takings Clause’’).


545 U.S. 499

Where is the line between ‘‘public’’ and‘‘private’’ property use? We give consider-able deference to legislatures’ determina-tions about what governmental activitieswill advantage the public. But were thepolitical branches the sole arbiters of thepublic-private distinction, the Public UseClause would amount to little more thanhortatory fluff. An external, judicial checkon how the public use requirement is inter-preted, however limited, is necessary ifthis constraint on government power is toretain any meaning. See Cincinnati v.Vester, 281 U.S. 439, 446, 50 S.Ct. 360, 74L.Ed. 950 (1930) (‘‘It is well establishedthat TTT the question [of] what is a publicuse is a judicial one’’).

Our cases have generally identifiedthree categories of takings that complywith the public use requirement, though itis in the nature of things that the bound-aries between these categories are not al-ways firm. Two are relatively straight-forward and uncontroversial. First, thesovereign may transfer private propertyto public ownership—such as for a road, ahospital, or a military base. See, e.g., OldDominion S 498Land Co. v. United States,269 U.S. 55, 46 S.Ct. 39, 70 L.Ed. 162(1925); Rindge Co. v. County of Los An-geles, 262 U.S. 700, 43 S.Ct. 689, 67 L.Ed.1186 (1923). Second, the sovereign maytransfer private property to private par-ties, often common carriers, who makethe property available for the public’suse—such as with a railroad, a public util-ity, or a stadium. See, e.g., NationalRailroad Passenger Corporation v. Bos-ton & Maine Corp., 503 U.S. 407, 112S.Ct. 1394, 118 L.Ed.2d 52 (1992); Mt.Vernon–Woodberry Cotton Duck Co. v.Alabama Interstate Power Co., 240 U.S.30, 36 S.Ct. 234, 60 L.Ed. 507 (1916).But ‘‘public ownership’’ and ‘‘use-by-the-public’’ are sometimes too constrictingand impractical ways to define the scopeof the Public Use Clause. Thus we have

allowed that, in certain circumstances andto meet certain exigencies, takings thatserve a public purpose also satisfy theConstitution even if the property is des-tined for subsequent private use. See,e.g., Berman v. Parker, 348 U.S. 26, 75S.Ct. 98, 99 L.Ed. 27 (1954); HawaiiHousing Authority v. Midkiff, 467 U.S.229, 104 S.Ct. 2321, 81 L.Ed.2d 186(1984).

This case returns us for the first time inover 20 years to the hard question of whena purportedly ‘‘public purpose’’ takingmeets the public use requirement. Itpresents an issue of first impression: Areeconomic development takings constitu-tional? I would hold that they are not.We are guided by two precedents aboutthe taking of real property by eminentdomain. In Berman, we upheld takingswithin a blighted neighborhood of Wash-ington, D.C. The neighborhood had so de-teriorated that, for example, 64.3% of itsdwellings were beyond repair. 348 U.S.,at 30, 75 S.Ct. 98. It had become bur-dened with ‘‘overcrowding of dwellings,’’‘‘lack of adequate streets and alleys,’’ and‘‘lack of light and air.’’ Id., at 34, 75 S.Ct.98. Congress had determined that theneighborhood had become ‘‘injurious to thepublic health, safety, morals, and welfare’’and that it was necessary to ‘‘eliminat[e]all such injurious conditions by employingall means necessary and appropriate forthe purpose,’’ including eminent domain.Id., at 28, 75 S.Ct. 98 (internal quotationmarks omitted). Mr. Berman’s depart-ment store was not itself blighted. Havingapproved S 499of Congress’ decision to elimi-nate the harm to the public emanatingfrom the blighted neighborhood, however,we did not second-guess its decision totreat the neighborhood as a whole ratherthan lot-by-lot. Id., at 34–35, 75 S.Ct. 98;see also Midkiff, 467 U.S., at 244, 104 S.Ct.2321 (‘‘[I]t is only the taking’s purpose,


and not its mechanics, that must pass scru-tiny’’).

In Midkiff, we upheld a land condemna-tion scheme in Hawaii whereby title in realproperty was taken from lessors andtransferred to lessees. At that time, theState and Federal Governments ownednearly 49% of the State’s land, and another47% was in the hands of only 72 privatelandowners. Concentration of land owner-ship was so dramatic that on the State’smost urbanized island, Oahu, 22 landown-ers owned 72.5% of the fee simple titles.Id., at 232, 104 S.Ct. 2321. The HawaiiLegislature had concluded that the oligo-poly in land ownership was ‘‘skewing theState’s residential fee simple market, in-flating land prices, and injuring the publictranquility and welfare,’’ and therefore en-acted a condemnation scheme for redis-tributing title. Ibid.

In those decisions, we emphasized theimportance of deferring to legislative judg-ments about public purpose. Becausecourts are ill equipped to evaluate theefficacy of proposed legislative initiatives,we rejected as unworkable the idea ofcourts’ ‘‘ ‘deciding on what is and is not agovernmental function and TTT invalidatinglegislation on the basis of their view onthat question at the moment of decision, apractice which has proved impracticable inother fields.’ ’’ Id., at 240–241, 104 S.Ct.2321 (quoting United States ex rel. TVA v.Welch, 327 U.S. 546, 552, 66 S.Ct. 715, 90L.Ed. 843 (1946)); see Berman, supra, at32, 75 S.Ct. 98 (‘‘[T]he legislature, not thejudiciary, is the main guardian of the pub-lic needs to be served by social legisla-tion’’); see also Lingle v. Chevron U.S.A.Inc., 544 U.S. 528, 125 S.Ct. 2074, 161L.Ed.2d 876 (2005). Likewise, we recog-nized our inability to evaluate whether, ina given case, eminent domain is a neces-sary means by which to pursue the legisla-ture’s ends. Midkiff, supra, at 242, 104S.Ct. 2321; Berman, supra, at 33, 75 S.Ct.98.

S 500Yet for all the emphasis on deference,Berman and Midkiff hewed to a bedrockprinciple without which our public use ju-risprudence would collapse: ‘‘A purely pri-vate taking could not withstand the scruti-ny of the public use requirement; it wouldserve no legitimate purpose of governmentand would thus be void.’’ Midkiff, 467U.S., at 245, 104 S.Ct. 2321; id., at 241,104 S.Ct. 2321 (‘‘[T]he Court’s cases haverepeatedly stated that ‘one person’s prop-erty may not be taken for the benefit ofanother private person without a justifyingpublic purpose, even though compensationbe paid’ ’’ (quoting Thompson v. Consoli-dated Gas Util. Corp., 300 U.S. 55, 80, 57S.Ct. 364, 81 L.Ed. 510 (1937))); see alsoMissouri Pacific R. Co. v. Nebraska, 164U.S. 403, 417, 17 S.Ct. 130, 41 L.Ed. 489(1896). To protect that principle, thosedecisions reserved ‘‘a role for courts toplay in reviewing a legislature’s judgmentof what constitutes a public use TTT

[though] the Court in Berman made clearthat it is ‘an extremely narrow’ one.’’Midkiff, supra, at 240, 104 S.Ct. 2321(quoting Berman, supra, at 32, 75 S.Ct.98).

The Court’s holdings in Berman andMidkiff were true to the principle underly-ing the Public Use Clause. In both thosecases, the extraordinary, precondemnationuse of the targeted property inflicted affir-mative harm on society—in Bermanthrough blight resulting from extreme pov-erty and in Midkiff through oligopoly re-sulting from extreme wealth. And in bothcases, the relevant legislative body hadfound that eliminating the existing proper-ty use was necessary to remedy the harm.Berman, supra, at 28–29, 75 S.Ct. 98;Midkiff, supra, at 232, 104 S.Ct. 2321.Thus a public purpose was realized whenthe harmful use was eliminated. Becauseeach taking directly achieved a public ben-efit, it did not matter that the propertywas turned over to private use. Here, in


545 U.S. 502

contrast, New London does not claim thatSusette Kelo’s and Wilhelmina Dery’s well-maintained homes are the source of anysocial harm. Indeed, it could not so claimwithout adopting the absurd argumentthat any single-family home that might berazed to make way for an apartment build-ing, or any church S 501that might be re-placed with a retail store, or any smallbusiness that might be more lucrative if itwere instead part of a national franchise, isinherently harmful to society and thuswithin the government’s power to con-demn.

In moving away from our decisions sanc-tioning the condemnation of harmful prop-erty use, the Court today significantly ex-pands the meaning of public use. It holdsthat the sovereign may take private prop-erty currently put to ordinary private use,and give it over for new, ordinary privateuse, so long as the new use is predicted togenerate some secondary benefit for thepublic—such as increased tax revenue,more jobs, maybe even esthetic pleasure.But nearly any lawful use of real privateproperty can be said to generate someincidental benefit to the public. Thus, ifpredicted (or even guaranteed) positiveside effects are enough to render transferfrom one private party to another constitu-tional, then the words ‘‘for public use’’ donot realistically exclude any takings, andthus do not exert any constraint on theeminent domain power.

There is a sense in which this troublingresult follows from errant language in Ber-man and Midkiff. In discussing whethertakings within a blighted neighborhoodwere for a public use, Berman began byobserving: ‘‘We deal, in other words, withwhat traditionally has been known as thepolice power.’’ 348 U.S., at 32, 75 S.Ct. 98.From there it declared that ‘‘[o]nce theobject is within the authority of Congress,the right to realize it through the exerciseof eminent domain is clear.’’ Id., at 33, 75

S.Ct. 98. Following up, we said in Midkiffthat ‘‘[t]he ‘public use’ requirement is co-terminous with the scope of a sovereign’spolice powers.’’ 467 U.S., at 240, 104 S.Ct.2321. This language was unnecessary tothe specific holdings of those decisions.Berman and Midkiff simply did not putsuch language to the constitutional test,because the takings in those cases werewithin the police power but also for ‘‘publicuse’’ for the reasons I have described.The case before us now demonstrates why,when deciding if a taking’s purpose isS 502constitutional, the police power and‘‘public use’’ cannot always be equated.

The Court protests that it does not sanc-tion the bare transfer from A to B for B’sbenefit. It suggests two limitations onwhat can be taken after today’s decision.First, it maintains a role for courts inferreting out takings whose sole purpose isto bestow a benefit on the private transfer-ee—without detailing how courts are toconduct that complicated inquiry. Ante, at2661–2662. For his part, Justice KEN-NEDY suggests that courts may divineillicit purpose by a careful review of therecord and the process by which a legisla-ture arrived at the decision to take—with-out specifying what courts should look forin a case with different facts, how they willknow if they have found it, and what to doif they do not. Ante, at 2669–2670 (con-curring opinion). Whatever the details ofJustice KENNEDY’s as-yet-undisclosedtest, it is difficult to envision anyone butthe ‘‘stupid staff[er]’’ failing it. See Lucasv. South Carolina Coastal Council, 505U.S. 1003, 1025–1026, n. 12, 112 S.Ct. 2886,120 L.Ed.2d 798 (1992). The trouble witheconomic development takings is that pri-vate benefit and incidental public benefitare, by definition, merged and mutuallyreinforcing. In this case, for example, anyboon for Pfizer or the plan’s developer isdifficult to disaggregate from the promised


public gains in taxes and jobs. See App.to Pet. for Cert. 275–277.

Even if there were a practical way toisolate the motives behind a given taking,the gesture toward a purpose test is theo-retically flawed. If it is true that inciden-tal public benefits from new private useare enough to ensure the ‘‘public purpose’’in a taking, why should it matter, as far asthe Fifth Amendment is concerned, whatinspired the taking in the first place?How much the government does or doesnot desire to benefit a favored privateparty has no bearing on whether an eco-nomic development taking will or will notgenerate secondary benefit for the public.And whatever the reason for a given con-demnation, the effect is the same S 503fromthe constitutional perspective—privateproperty is forcibly relinquished to newprivate ownership.

A second proposed limitation is implicitin the Court’s opinion. The logic of to-day’s decision is that eminent domain mayonly be used to upgrade—not down-grade—property. At best this makes thePublic Use Clause redundant with the DueProcess Clause, which already prohibitsirrational government action. See Lingle,544 U.S. 528, 125 S.Ct. 2074. The Courtrightfully admits, however, that the judi-ciary cannot get bogged down in predictivejudgments about whether the public willactually be better off after a propertytransfer. In any event, this constraint hasno realistic import. For who among uscan say she already makes the most pro-ductive or attractive possible use of herproperty? The specter of condemnationhangs over all property. Nothing is toprevent the State from replacing any Mo-tel 6 with a Ritz–Carlton, any home with ashopping mall, or any farm with a factory.Cf. Bugryn v. Bristol, 63 Conn.App. 98,774 A.2d 1042 (2001) (taking the homesand farm of four owners in their 70’s and

80’s and giving it to an ‘‘industrial park’’);99 Cents Only Stores v. Lancaster Rede-velopment Agency, 237 F.Supp.2d 1123(C.D.Cal.2001) (attempted taking of 99Cents store to replace with a Costco);Poletown Neighborhood Council v. Detroit,410 Mich. 616, 304 N.W.2d 455 (1981) (tak-ing a working-class, immigrant communityin Detroit and giving it to a General Mo-tors assembly plant), overruled by Countyof Wayne v. Hathcock, 471 Mich. 445, 684N.W.2d 765 (2004); Brief for Becket Fundfor Religious Liberty as Amicus Curiae 4–11 (describing takings of religious institu-tions’ properties); Institute for Justice, D.Berliner, Public Power, Private Gain: AFive–Year, State–by–State Report Exam-ining the Abuse of Eminent Domain (2003)(collecting accounts of economic develop-ment takings).

The Court also puts special emphasis onfacts peculiar to this case: The NLDC’splan is the product of a relatively carefuldeliberative process; it proposes to useeminent doSmain504 for a multipart, inte-grated plan rather than for isolated prop-erty transfer; it promises an array of inci-dental benefits (even esthetic ones), notjust increased tax revenue; it comes onthe heels of a legislative determinationthat New London is a depressed munici-pality. See, e.g., ante, at 2667 (‘‘[A] one-to-one transfer of property, executed outsidethe confines of an integrated developmentplan, is not presented in this case’’). Jus-tice KENNEDY, too, takes great comfortin these facts. Ante, at 2670 (concurringopinion). But none has legal significanceto blunt the force of today’s holding. Iflegislative prognostications about the sec-ondary public benefits of a new use canlegitimate a taking, there is nothing in theCourt’s rule or in Justice KENNEDY’sgloss on that rule to prohibit propertytransfers generated with less care, thatare less comprehensive, that happen toresult from less elaborate process, whose


545 U.S. 506

only projected advantage is the incidenceof higher taxes, or that hope to transforman already prosperous city into an evenmore prosperous one.

Finally, in a coda, the Court suggeststhat property owners should turn to theStates, who may or may not choose toimpose appropriate limits on economic de-velopment takings. Ante, at 2668. This isan abdication of our responsibility. Statesplay many important functions in our sys-tem of dual sovereignty, but compensatingfor our refusal to enforce properly theFederal Constitution (and a provisionmeant to curtail state action, no less) is notamong them.

* * *

It was possible after Berman and Mid-kiff to imagine unconstitutional transfersfrom A to B. Those decisions endorsedgovernment intervention when privateproperty use had veered to such an ex-treme that the public was suffering as aconsequence. Today nearly all real prop-erty is susceptible to condemnation on theCourt’s theory. In the prescient words ofa dissenter from the infamous decision inPoletown, ‘‘[n]ow that we have authorizedlocal legislative S 505bodies to decide that adifferent commercial or industrial use ofproperty will produce greater public bene-fits than its present use, no homeowner’s,merchant’s or manufacturer’s property,however productive or valuable to its own-er, is immune from condemnation for thebenefit of other private interests that willput it to a ‘higher’ use.’’ 410 Mich., at644–645, 304 N.W.2d, at 464 (opinion ofFitzgerald, J.). This is why economic de-velopment takings ‘‘seriously jeopardiz[e]the security of all private property owner-ship.’’ Id., at 645, 304 N.W.2d, at 465(Ryan, J., dissenting).

Any property may now be taken for thebenefit of another private party, but thefallout from this decision will not be ran-

dom. The beneficiaries are likely to bethose citizens with disproportionate influ-ence and power in the political process,including large corporations and develop-ment firms. As for the victims, the gov-ernment now has license to transfer prop-erty from those with fewer resources tothose with more. The Founders cannothave intended this perverse result.‘‘[T]hat alone is a just government,’’ wroteJames Madison, ‘‘which impartially se-cures to every man, whatever is his own.’’For the National Gazette, Property (Mar.27, 1792), reprinted in 14 Papers of JamesMadison 266 (R. Rutland et al. eds.1983).

I would hold that the takings in bothParcel 3 and Parcel 4A are unconstitution-al, reverse the judgment of the SupremeCourt of Connecticut, and remand for fur-ther proceedings.

Justice THOMAS, dissenting.

Long ago, William Blackstone wrotethat ‘‘the law of the land TTT postpone[s]even public necessity to the sacred andinviolable rights of private property.’’ 1Commentaries on the Laws of England134–135 (1765) (hereinafter Blackstone).The Framers embodied that principle inthe Constitution, allowing the governmentto take property not for ‘‘public necessity,’’but instead for ‘‘public use.’’ Amdt. 5.S 506Defying this understanding, the Courtreplaces the Public Use Clause with a‘‘ ‘[P]ublic [P]urpose’ ’’ Clause, ante, at2662–2663 (or perhaps the ‘‘Diverse andAlways Evolving Needs of Society’’ Clause,ante, at 2662 (capitalization added)), a re-striction that is satisfied, the Court in-structs, so long as the purpose is ‘‘legiti-mate’’ and the means ‘‘not irrational,’’ ante,at 2667 (internal quotation marks omitted).This deferential shift in phraseology en-ables the Court to hold, against all com-mon sense, that a costly urban-renewalproject whose stated purpose is a vague


promise of new jobs and increased taxrevenue, but which is also suspiciouslyagreeable to the Pfizer Corporation, is fora ‘‘public use.’’

I cannot agree. If such ‘‘economic de-velopment’’ takings are for a ‘‘public use,’’any taking is, and the Court has erasedthe Public Use Clause from our Constitu-tion, as Justice O’CONNOR powerfully ar-gues in dissent. Ante, at 2671, 2675–2677.I do not believe that this Court can elimi-nate liberties expressly enumerated in theConstitution and therefore join her dis-senting opinion. Regrettably, however,the Court’s error runs deeper than this.Today’s decision is simply the latest in astring of our cases construing the PublicUse Clause to be a virtual nullity, withoutthe slightest nod to its original meaning.In my view, the Public Use Clause, origi-nally understood, is a meaningful limit onthe government’s eminent domain power.Our cases have strayed from the Clause’soriginal meaning, and I would reconsiderthem.

I

The Fifth Amendment provides:‘‘No person shall be held to answer for acapital, or otherwise infamous crime, un-less on a presentment or indictment of aGrand Jury, except in cases arising inthe land or naval forces, or in the Mili-tia, when in actual service in time ofWar or public danger; nor shall anyperson be subject for the same offenceto be twice put in jeopardy of life orlimb, nor shall be compelled in anyS 507criminal case to be a witness againsthimself, nor be deprived of life, liberty,or property, without due process of law;nor shall private property be taken forpublic use, without just compensation.’’(Emphasis added.)

It is the last of these liberties, the TakingsClause, that is at issue in this case. In my

view, it is ‘‘imperative that the Court main-tain absolute fidelity to’’ the Clause’s ex-press limit on the power of the govern-ment over the individual, no less than withevery other liberty expressly enumeratedin the Fifth Amendment or the Bill ofRights more generally. Shepard v. UnitedStates, 544 U.S. 13, 28, 125 S.Ct. 1254,1264, 161 L.Ed.2d 205 (2005) (THOMAS,J., concurring in part and concurring injudgment) (internal quotation marks omit-ted).

Though one component of the protectionprovided by the Takings Clause is that thegovernment can take private property onlyif it provides ‘‘just compensation’’ for thetaking, the Takings Clause also prohibitsthe government from taking property ex-cept ‘‘for public use.’’ Were it otherwise,the Takings Clause would either be mean-ingless or empty. If the Public UseClause served no function other than tostate that the government may take prop-erty through its eminent domain power—for public or private uses—then it wouldbe surplusage. See ante, at 2672 (O’CON-NOR, J., dissenting); see also Marbury v.Madison, 1 Cranch 137, 174, 2 L.Ed. 60(1803) (‘‘It cannot be presumed that anyclause in the constitution is intended to bewithout effect’’); Myers v. United States,272 U.S. 52, 151, 47 S.Ct. 21, 71 L.Ed. 160(1926). Alternatively, the Clause coulddistinguish those takings that require com-pensation from those that do not. Thatinterpretation, however, ‘‘would permit pri-vate property to be taken or appropriatedfor private use without any compensationwhatever.’’ Cole v. La Grange, 113 U.S. 1,8, 5 S.Ct. 416, 28 L.Ed. 896 (1885) (inter-preting same language in the MissouriPublic Use Clause). In other words, theClause would require the government tocompensate for takings done ‘‘for publicuse,’’ leaving it free to take property forpurely private uses without the payment of


545 U.S. 509

compensaStion.508 This would contradict abedrock principle well established by thetime of the founding: that all takings re-quired the payment of compensation. 1Blackstone 135; 2 J. Kent, Commentarieson American Law 275 (1827) (hereinafterKent); For the National Gazette, Property(Mar. 27, 1792), in 14 Papers of JamesMadison 266, 267 (R. Rutland et al. eds.1983) (arguing that no property ‘‘shall betaken directly even for public use withoutindemnification to the owner’’).1 The Pub-lic Use Clause, like the Just CompensationClause, is therefore an express limit on thegovernment’s power of eminent domain.

The most natural reading of the Clauseis that it allows the government to takeproperty only if the government owns, orthe public has a legal right to use, theproperty, as opposed to taking it for anypublic purpose or necessity whatsoever.At the time of the founding, dictionariesprimarily defined the noun ‘‘use’’ as ‘‘[t]heact of employing any thing to any pur-pose.’’ 2 S. Johnson, A Dictionary of theEnglish Language 2194 (4th ed. 1773)(hereinafter Johnson). The term ‘‘use,’’moreover, ‘‘is from the Latin utor, whichmeans ‘to use, make use of, avail one’s selfof, employ, apply, enjoy, etc.’’ J. Lewis,Law of Eminent Domain § 165, p. 224, n. 4(1888) (hereinafter Lewis). When the gov-ernment takes property and gives it to aprivate individual, and the public has noright to use the property, it strains lan-guage to say that the public is ‘‘employing’’the property, regardless of the incidentalbenefits that might accrue to the publicfrom the private use. The term ‘‘publicuse,’’ then, means that either the govern-

ment or its citizens as a whole mustactuSally509 ‘‘employ’’ the taken property.See id., at 223 (reviewing founding-era dic-tionaries).

Granted, another sense of the word‘‘use’’ was broader in meaning, extendingto ‘‘[c]onvenience’’ or ‘‘help,’’ or ‘‘[q]ualitiesthat make a thing proper for any purpose.’’2 Johnson 2194. Nevertheless, read incontext, the term ‘‘public use’’ possessesthe narrower meaning. Elsewhere, theConstitution twice employs the word ‘‘use,’’both times in its narrower sense. Claeys,Public–Use Limitations and Natural Prop-erty Rights, 2004 Mich. St. L.Rev. 877, 897(hereinafter Public Use Limitations). Ar-ticle I, § 10, provides that ‘‘the net Pro-duce of all Duties and Imposts, laid by anyState on Imports or Exports, shall be forthe Use of the Treasury of the UnitedStates,’’ meaning the Treasury itself willcontrol the taxes, not use it to any benefi-cial end. And Article I, § 8, grants Con-gress power ‘‘[t]o raise and support Ar-mies, but no Appropriation of Money tothat Use shall be for a longer Term thantwo Years.’’ Here again, ‘‘use’’ means‘‘employed to raise and support Armies,’’not anything directed to achieving any mil-itary end. The same word in the PublicUse Clause should be interpreted to havethe same meaning.

Tellingly, the phrase ‘‘public use’’ con-trasts with the very different phrase ‘‘gen-eral Welfare’’ used elsewhere in the Con-stitution. See ibid. (‘‘Congress shall havePower To TTT provide for the commonDefence and general Welfare of the UnitedStates’’); preamble (Constitution estab-lished ‘‘to promote the general Welfare’’).

1. Some state constitutions at the time of thefounding lacked just compensation clausesand took property even without providingcompensation. See Lucas v. South CarolinaCoastal Council, 505 U.S. 1003, 1056–1057,112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)

(Blackmun, J., dissenting). The Framers ofthe Fifth Amendment apparently disagreed,for they expressly prohibited uncompensatedtakings, and the Fifth Amendment was notincorporated against the States until muchlater. See id., at 1028, n. 15, 112 S.Ct. 2886.


The Framers would have used some suchbroader term if they had meant the PublicUse Clause to have a similarly sweepingscope. Other founding-era documentsmade the contrast between these two us-ages still more explicit. See Sales, Classi-cal Republicanism and the Fifth Amend-ment’s ‘‘Public Use’’ Requirement, 49Duke L.J. 339, 367–368 (1999) (hereinafterSales) (noting contrast between, on the onehand, the term ‘‘public use’’ used by 6 ofthe first 13 States and, on the other, S 510theterms ‘‘public exigencies’’ employed in theMassachusetts Bill of Rights and theNorthwest Ordinance, and the term ‘‘pub-lic necessity’’ used in the Vermont Consti-tution of 1786). The Constitution’s text, inshort, suggests that the Takings Clauseauthorizes the taking of property only ifthe public has a right to employ it, not ifthe public realizes any conceivable benefitfrom the taking.

The Constitution’s common-law back-ground reinforces this understanding.The common law provided an expressmethod of eliminating uses of land thatadversely impacted the public welfare:nuisance law. Blackstone and Kent, forinstance, both carefully distinguished thelaw of nuisance from the power of eminentdomain. Compare 1 Blackstone 135 (not-ing government’s power to take privateproperty with compensation) with 3 id., at216 (noting action to remedy ‘‘public TTT

nuisances, which affect the public, and arean annoyance to all the king’s subjects’’);see also 2 Kent 274–276 (distinguishing thetwo). Blackstone rejected the idea thatprivate property could be taken solely forpurposes of any public benefit. ‘‘So greatTTT is the regard of the law for privateproperty,’’ he explained, ‘‘that it will notauthorize the least violation of it; no, noteven for the general good of the wholecommunity.’’ 1 Blackstone 135. He con-tinued: ‘‘If a new road TTT were to bemade through the grounds of a private

person, it might perhaps be extensivelybeneficial to the public; but the law per-mits no man, or set of men, to do thiswithout the consent of the owner of theland.’’ Ibid. Only ‘‘by giving [the landown-er] full indemnification’’ could the govern-ment take property, and even then ‘‘[t]hepublic [was] now considered as an individ-ual, treating with an individual for an ex-change.’’ Ibid. When the public tookproperty, in other words, it took it as anindividual buying property from anothertypically would: for one’s own use. ThePublic Use Clause, in short, embodied theFramers’ understanding that property is anatural, fundamental right, prohibiting thegovernment from ‘‘tak[ing] property fromA. and S 511giv[ing] it to B.’’ Calder v. Bull,3 Dall. 386, 388, 1 L.Ed. 648 (1798); seealso Wilkinson v. Leland, 2 Pet. 627, 658,7 L.Ed. 542 (1829); Vanhorne’s Lessee v.Dorrance, 2 Dall. 304, 311, 1 L.Ed. 391(C.C.D.Pa.1795).

The public purpose interpretation of thePublic Use Clause also unnecessarily du-plicates a similar inquiry required by theNecessary and Proper Clause. The Tak-ings Clause is a prohibition, not a grant ofpower: The Constitution does not express-ly grant the Federal Government the pow-er to take property for any public purposewhatsoever. Instead, the Governmentmay take property only when necessaryand proper to the exercise of an expresslyenumerated power. See Kohl v. UnitedStates, 91 U.S. 367, 371–372, 23 L.Ed. 449(1876) (noting Federal Government’s pow-er under the Necessary and Proper Clauseto take property ‘‘needed for forts, armor-ies, and arsenals, for navy-yards and light-houses, for custom-houses, post-offices,and court-houses, and for other publicuses’’). For a law to be within the Neces-sary and Proper Clause, as I have else-where explained, it must bear an ‘‘obvious,simple, and direct relation’’ to an exercise


545 U.S. 513

of Congress’ enumerated powers, Sabri v.United States, 541 U.S. 600, 613, 124 S.Ct.1941, 158 L.Ed.2d 891 (2004) (THOMAS,J., concurring in judgment), and it mustnot ‘‘subvert basic principles of’’ constitu-tional design, Gonzales v. Raich, ante, 545U.S., at 65, 125 S.Ct. 2195, 162 L.Ed.2d 1(2005) (THOMAS, J., dissenting). In oth-er words, a taking is permissible under theNecessary and Proper Clause only if itserves a valid public purpose. Interpret-ing the Public Use Clause likewise to limitthe government to take property only forsufficiently public purposes replicates thisinquiry. If this is all the Clause means, itis, once again, surplusage. See supra, at2678. The Clause is thus most naturallyread to concern whether the property isused by the public or the government, notwhether the purpose of the taking is legiti-mately public.

II

Early American eminent domain prac-tice largely bears out this understanding ofthe Public Use Clause. This practiceS 512concerns state limits on eminent domainpower, not the Fifth Amendment, since itwas not until the late 19th century that theFederal Government began to use thepower of eminent domain, and since theTakings Clause did not even arguably limitstate power until after the passage of theFourteenth Amendment. See Note, ThePublic Use Limitation on Eminent Do-main: An Advance Requiem, 58 Yale L.J.599, 599–600, and nn. 3–4 (1949); Barronex rel. Tiernan v. Mayor of Baltimore, 7Pet. 243, 250–251, 8 L.Ed. 672 (1833) (hold-ing the Takings Clause inapplicable to theStates of its own force). Nevertheless,several early state constitutions at thetime of the founding likewise limited thepower of eminent domain to ‘‘public uses.’’See Sales 367–369, and n. 137 (emphasisdeleted). Their practices therefore shed

light on the original meaning of the samewords contained in the Public Use Clause.

States employed the eminent domainpower to provide quintessentially publicgoods, such as public roads, toll roads,ferries, canals, railroads, and public parks.Lewis §§ 166, 168–171, 175, at 227–228,234–241, 243. Though use of the eminentdomain power was sparse at the time ofthe founding, many States did have so-called Mill Acts, which authorized the own-ers of grist mills operated by water powerto flood upstream lands with the paymentof compensation to the upstream landown-er. See, e.g., id., § 178, at 245–246; Headv. Amoskeag Mfg. Co., 113 U.S. 9, 16–19,and n. 2, 5 S.Ct. 441, 28 L.Ed. 889 (1885).Those early grist mills ‘‘were regulated bylaw and compelled to serve the public for astipulated toll and in regular order,’’ andtherefore were actually used by the public.Lewis § 178, at 246, and n. 3; see alsoHead, supra, at 18–19, 5 S.Ct. 441. Theywere common carriers—quasi-public enti-ties. These were ‘‘public uses’’ in the full-est sense of the word, because the publiccould legally use and benefit from themequally. See Public Use Limitations 903(common-carrier status traditionally af-forded to ‘‘private beneficiaries of a statefranSchise513 or another form of state mo-nopoly, or to companies that operated inconditions of natural monopoly’’).

To be sure, some early state legislaturestested the limits of their state-law eminentdomain power. Some States enacted stat-utes allowing the taking of property forthe purpose of building private roads. SeeLewis § 167, at 230. These statutes weremixed; some required the private land-owner to keep the road open to the public,and others did not. See id., § 167, at 230–234. Later in the 19th century, moreover,the Mill Acts were employed to grantrights to private manufacturing plants, inaddition to grist mills that had common-


carrier duties. See, e.g., M. Horwitz, TheTransformation of American Law 1780–1860, pp. 51–52 (1977).

These early uses of the eminent domainpower are often cited as evidence for thebroad ‘‘public purpose’’ interpretation ofthe Public Use Clause, see, e.g., ante, at2662, n. 8 (majority opinion); Brief forRespondents 30; Brief for American Plan-ning Assn. et al. as Amici Curiae 6–7, butin fact the constitutionality of these exer-cises of eminent domain power under statepublic use restrictions was a hotly contest-ed question in state courts throughout the19th and into the 20th century. Somecourts construed those clauses to authorizetakings for public purposes, but others ad-hered to the natural meaning of ‘‘publicuse.’’ 2 As noted above, S 514the earliest MillActs were applied to entities with duties toremain open to the public, and their laterextension is not deeply probative of wheth-er that subsequent practice is consistentwith the original meaning of the PublicUse Clause. See McIntyre v. Ohio Elec-tions Comm’n, 514 U.S. 334, 370, 115 S.Ct.1511, 131 L.Ed.2d 426 (1995) (THOMAS,J., concurring in judgment). At the timeof the founding, ‘‘[b]usiness corporationswere only beginning to upset the old cor-porate model, in which the raison d’etre ofchartered associations was their service to

the public,’’ Horwitz, supra, at 49–50, so itwas natural to those who framed the firstPublic Use Clauses to think of mills asinherently public entities. The disagree-ment among state courts, and state legisla-tures’ attempts to circumvent public uselimits on their eminent domain power, can-not obscure that the Public Use Clause ismost naturally read to authorize takingsfor public use only if the government orthe public actually uses the taken proper-ty.

III

Our current Public Use Clause jurispru-dence, as the Court notes, has rejected thisnatural reading of the Clause. Ante, at2662–2664. The Court adopted its modernreading blindly, with little discussion of theClause’s history and original meaning, intwo distinct lines of cases: first, in casesadopting the ‘‘public purpose’’ interpreta-tion of the Clause, and second, in casesdeferring to legislatures’ judgments re-garding what constitutes a valid publicpurpose. Those questionable cases con-verged in the boundlessly broad and defer-ential S 515conception of ‘‘public use’’adopted by this Court in Berman v. Par-ker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27(1954), and Hawaii Housing Authority v.Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81

2. Compare ante, at 2662, and n. 8 (majorityopinion) (noting that some state courts upheldthe validity of applying the Mill Acts to privatepurposes and arguing that the ‘‘ ‘use by thepublic’ test’’ ‘‘eroded over time’’), with, e.g.,Ryerson v. Brown, 35 Mich. 333, 338–339(1877) (holding it ‘‘essential’’ to the constitu-tionality of a Mill Act ‘‘that the statute shouldrequire the use to be public in fact; in otherwords, that it should contain provisions enti-tling the public to accommodations’’); Gay-lord v. Sanitary Dist. of Chicago, 204 Ill. 576,581–584, 68 N.E. 522, 524 (1903) (same);Tyler v. Beacher, 44 Vt. 648, 652–656 (1871)(same); Sadler v. Langham, 34 Ala. 311, 332–334 (1859) (striking down taking for purelyprivate road and grist mill); Varner v. Martin,

21 W.Va. 534, 546–548, 556–557, 566–567(1883) (grist mill and private road had to beopen to public for them to constitute publicuse); Harding v. Goodlett, 11 Tenn. 41, 3 Yer.41, 53 (1832); Jacobs v. Clearview Water Sup-ply Co., 220 Pa. 388, 393–395, 69 A. 870, 872(1908) (endorsing actual public use standard);Minnesota Canal & Power Co. v. KoochichingCo., 97 Minn. 429, 449–451, 107 N.W. 405,413 (1906) (same); Chesapeake Stone Co. v.Moreland, 126 Ky. 656, 663–667, 104 S.W.762, 765 (1907) (same); Note, Public Use inEminent Domain, 21 N.Y.U.L.Q. Rev. 285,286, and n. 11 (1946) (calling the actual pub-lic use standard the ‘‘majority view’’ and cit-ing other cases).


545 U.S. 516

L.Ed.2d 186 (1984), cases that take centerstage in the Court’s opinion. See ante,2663–2664. The weakness of those twolines of cases, and consequently Bermanand Midkiff, fatally undermines the doctri-nal foundations of the Court’s decision.Today’s questionable application of thesecases is further proof that the ‘‘public pur-pose’’ standard is not susceptible of princi-pled application. This Court’s reliance byrote on this standard is ill advised andshould be reconsidered.

A

As the Court notes, the ‘‘public purpose’’interpretation of the Public Use Clausestems from Fallbrook Irrigation Dist. v.Bradley, 164 U.S. 112, 161–162, 17 S.Ct.56, 41 L.Ed. 369 (1896). Ante, at 2662–2663. The issue in Bradley was whether acondemnation for purposes of constructingan irrigation ditch was for a public use.164 U.S., at 161, 17 S.Ct. 56. This was apublic use, Justice Peckham declared forthe Court, because ‘‘[t]o irrigate and thusto bring into possible cultivation theselarge masses of otherwise worthless landswould seem to be a public purpose and amatter of public interest, not confined tolandowners, or even to any one section ofthe State.’’ Ibid. That broad statementwas dictum, for the law under review alsoprovided that ‘‘[a]ll landowners in the dis-trict have the right to a proportionateshare of the water.’’ Id., at 162, 17 S.Ct.56. Thus, the ‘‘public’’ did have the rightto use the irrigation ditch because all simi-larly situated members of the public—those who owned lands irrigated by theditch—had a right to use it. The Courtcited no authority for its dictum, and didnot discuss either the Public Use Clause’soriginal meaning or the numerous authori-ties that had adopted the ‘‘actual use’’ test(though it at least acknowledged the con-flict of authority in state courts, see id., at158, 17 S.Ct. 56; supra, at 2682, and n. 2).

Instead, the Court reasoned that ‘‘[t]he usemust be regarded as a public use, or else itwould seem to follow that no genSeral516

scheme of irrigation can be formed or car-ried into effect.’’ Bradley, supra, at 160–161, 17 S.Ct. 56. This is no statement ofconstitutional principle: Whatever the util-ity of irrigation districts or the merits ofthe Court’s view that another rule wouldbe ‘‘impractical given the diverse and al-ways evolving needs of society,’’ ante, at2662, the Constitution does not embodythose policy preferences any more than it‘‘enact[s] Mr. Herbert Spencer’s SocialStatics.’’ Lochner v. New York, 198 U.S.45, 75, 25 S.Ct. 539, 49 L.Ed. 937 (1905)(Holmes, J., dissenting); but see id., at 58–62, 25 S.Ct. 539 (Peckham, J., for theCourt).

This Court’s cases followed Bradley’stest with little analysis. In Clark v. Nash,198 U.S. 361, 25 S.Ct. 676, 49 L.Ed. 1085(1905) (Peckham, J., for the Court), thisCourt relied on little more than a citationto Bradley in upholding another condem-nation for the purpose of laying an irriga-tion ditch. 198 U.S., at 369–370, 25 S.Ct.676. As in Bradley, use of the ‘‘publicpurpose’’ test was unnecessary to the re-sult the Court reached. The governmentcondemned the irrigation ditch for the pur-pose of ensuring access to water in which‘‘[o]ther land owners adjoining the defen-dant in error TTT might share,’’ 198 U.S.,at 370, 25 S.Ct. 676, and therefore Clarkalso involved a condemnation for the pur-pose of ensuring access to a resource towhich similarly situated members of thepublic had a legal right of access. Like-wise, in Strickley v. Highland Boy GoldMining Co., 200 U.S. 527, 26 S.Ct. 301, 50L.Ed. 581 (1906), the Court upheld a con-demnation establishing an aerial right-of-way for a bucket line operated by a miningcompany, relying on little more thanClark, see Strickley, supra, at 531, 26 S.Ct.


301. This case, too, could have been dis-posed of on the narrower ground that ‘‘theplaintiff [was] a carrier for itself and oth-ers,’’ 200 U.S., at 531–532, 26 S.Ct. 301,and therefore that the bucket line waslegally open to the public. Instead, theCourt unnecessarily rested its decision onthe ‘‘inadequacy of use by the generalpublic as a universal test.’’ Id., at 531, 26S.Ct. 301. This Court’s cases quickly in-corporated the public purpose standard setforth in Clark and Strickley by barrencitation. See, S 517e.g., Rindge Co. v. Coun-ty of Los Angeles, 262 U.S. 700, 707, 43S.Ct. 689, 67 L.Ed. 1186 (1923); Block v.Hirsh, 256 U.S. 135, 155, 41 S.Ct. 458, 65L.Ed. 865 (1921); Mt. Vernon–WoodberryCotton Duck Co. v. Alabama InterstatePower Co., 240 U.S. 30, 32, 36 S.Ct. 234, 60L.Ed. 507 (1916); O’Neill v. Leamer, 239U.S. 244, 253, 36 S.Ct. 54, 60 L.Ed. 249(1915).

BA second line of this Court’s cases also

deviated from the Public Use Clause’soriginal meaning by allowing legislaturesto define the scope of valid ‘‘public uses.’’United States v. Gettysburg Electric R.Co., 160 U.S. 668, 16 S.Ct. 427, 40 L.Ed.576 (1896), involved the question whetherCongress’ decision to condemn certain pri-vate land for the purpose of building bat-tlefield memorials at Gettysburg, Pennsyl-vania, was for a public use. Id., at 679–680, 16 S.Ct. 427. Since the Federal Gov-ernment was to use the lands in question,id., at 682, 16 S.Ct. 427, there is no doubtthat it was a public use under any reason-able standard. Nonetheless, the Court,speaking through Justice Peckham, de-clared that ‘‘when the legislature has de-clared the use or purpose to be a publicone, its judgment will be respected by thecourts, unless the use be palpably withoutreasonable foundation.’’ Id., at 680, 16S.Ct. 427. As it had with the ‘‘publicpurpose’’ dictum in Bradley, the Court

quickly incorporated this dictum into itsPublic Use Clause cases with little discus-sion. See, e.g., United States ex rel. TVAv. Welch, 327 U.S. 546, 552, 66 S.Ct. 715,90 L.Ed. 843 (1946); Old Dominion LandCo. v. United States, 269 U.S. 55, 66, 46S.Ct. 39, 70 L.Ed. 162 (1925).

There is no justification, however, foraffording almost insurmountable deferenceto legislative conclusions that a use servesa ‘‘public use.’’ To begin with, a courtowes no deference to a legislature’s judg-ment concerning the quintessentially legalquestion of whether the government owns,or the public has a legal right to use, thetaken property. Even under the ‘‘publicpurpose’’ interpretation, moreover, it ismost implausible that the Framers intend-ed to defer to legislatures as to what satis-fies the Public Use Clause, uniquelyS 518among all the express provisions of theBill of Rights. We would not defer to alegislature’s determination of the variouscircumstances that establish, for example,when a search of a home would be reason-able, see, e.g., Payton v. New York, 445U.S. 573, 589–590, 100 S.Ct. 1371, 63L.Ed.2d 639 (1980), or when a convicteddouble-murderer may be shackled during asentencing proceeding without on-the-rec-ord findings, see Deck v. Missouri, 544U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953(2005), or when state law creates a proper-ty interest protected by the Due ProcessClause, see, e.g., Castle Rock v. Gonzales,post, 545 U.S. 748, 125 S.Ct. 2796, 162L.Ed.2d 658, 2005 WL 1499788 (2005);Board of Regents of State Colleges v. Roth,408 U.S. 564, 576, 92 S.Ct. 2701, 33L.Ed.2d 548 (1972); Goldberg v. Kelly, 397U.S. 254, 262–263, 90 S.Ct. 1011, 25L.Ed.2d 287 (1970).

Still worse, it is backwards to adopt asearching standard of constitutional reviewfor nontraditional property interests, suchas welfare benefits, see, e.g., Goldberg, su-


545 U.S. 520

pra, while deferring to the legislature’sdetermination as to what constitutes apublic use when it exercises the power ofeminent domain, and thereby invades indi-viduals’ traditional rights in real property.The Court has elsewhere recognized ‘‘theoverriding respect for the sanctity of thehome that has been embedded in our tradi-tions since the origins of the Republic,’’Payton, supra, at 601, 100 S.Ct. 1371,when the issue is only whether the govern-ment may search a home. Yet today theCourt tells us that we are not to ‘‘second-guess the City’s considered judgments,’’ante, at 2668, when the issue is, instead,whether the government may take the infi-nitely more intrusive step of tearing downpetitioners’ homes. Something has goneseriously awry with this Court’s interpre-tation of the Constitution. Though citizensare safe from the government in theirhomes, the homes themselves are not.Once one accepts, as the Court at leastnominally does, ante, at 2661, that thePublic Use Clause is a limit on the eminentdomain power of the Federal Governmentand the States, there is no justification forthe almost complete deference it grants tolegislatures as to what satisfies it.

S 519C

These two misguided lines of precedentconverged in Berman v. Parker, 348 U.S.26, 75 S.Ct. 98, 99 L.Ed. 27 (1954), andHawaii Housing Authority v. Midkiff, 467U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186(1984). Relying on those lines of cases,the Court in Berman and Midkiff upheldcondemnations for the purposes of slumclearance and land redistribution, respec-tively. ‘‘Subject to specific constitutionallimitations,’’ Berman proclaimed, ‘‘whenthe legislature has spoken, the public in-terest has been declared in terms well-nigh conclusive. In such cases the legisla-ture, not the judiciary, is the main guard-ian of the public needs to be served by

social legislation.’’ 348 U.S., at 32, 75S.Ct. 98. That reasoning was questionbegging, since the question to be decidedwas whether the ‘‘specific constitutionallimitation’’ of the Public Use Clause pre-vented the taking of the appellant’s (con-cededly ‘‘nonblighted’’) department store.Id., at 31, 34, 75 S.Ct. 98. Berman alsoappeared to reason that any exercise byCongress of an enumerated power (in thiscase, its plenary power over the District ofColumbia) was per se a ‘‘public use’’ underthe Fifth Amendment. Id., at 33, 75 S.Ct.98. But the very point of the Public UseClause is to limit that power. See supra,at 2679.

More fundamentally, Berman and Mid-kiff erred by equating the eminent domainpower with the police power of States.See Midkiff, supra, at 240, 104 S.Ct. 2321(‘‘The ‘public use’ requirement is TTT coter-minous with the scope of a sovereign’spolice powers’’); Berman, supra, at 32, 75S.Ct. 98. Traditional uses of that regula-tory power, such as the power to abate anuisance, required no compensation what-soever, see Mugler v. Kansas, 123 U.S.623, 668–669, 8 S.Ct. 273, 31 L.Ed. 205(1887), in sharp contrast to the takingspower, which has always required compen-sation, see supra, at 2679, and n. 1. Thequestion whether the State can take prop-erty using the power of eminent domain istherefore distinct from the question wheth-er it can regulate property pursuant to thepolice power. See, e.g., Lucas v. SouthCarolina Coastal Council, 505 U.S. 1003,1014, 112 S.Ct. 2886, 120 L.Ed.2d 798(1992); Mugler, S 520supra, at 668–669, 8S.Ct. 273. In Berman, for example, if theslums at issue were truly ‘‘blighted,’’ thenstate nuisance law, see, e.g., supra, at2680; Lucas, supra, at 1029, 112 S.Ct.2886, not the power of eminent domain,would provide the appropriate remedy.To construe the Public Use Clause to over-


lap with the States’ police power conflatesthese two categories.3

The ‘‘public purpose’’ test applied byBerman and Midkiff also cannot be ap-plied in principled manner. ‘‘When wedepart from the natural import of the term‘public use,’ and substitute for the simpleidea of a public possession and occupation,that of public utility, public interest, com-mon benefit, general advantage or conven-ience TTT we are afloat without any certainprinciple to guide us.’’ Bloodgood v. Mo-hawk & Hudson R. Co., 18 Wend. 9, 60–61(N.Y.1837) (opinion of Tracy, Sen.). Onceone permits takings for public purposes inaddition to public uses, no coherent princi-ple limits what could constitute a validpublic use-at least, none beyond JusticeO’CONNOR’s (entirely proper) appeal tothe text of the Constitution itself. Seeante, at 2671, 2675–2677 (dissenting opin-ion). I share the Court’s skepticism abouta public use standard that requires courtsto second-guess the policy wisdom of pub-lic works projects. Ante, at 2666–2668.The ‘‘public purpose’’ standard this Courthas adopted, however, demands the use ofsuch judgment, for the Court concedesthat the Public Use Clause would forbid apurely private taking. S 521Ante, at 2661–2662. It is difficult to imagine how a courtcould find that a taking was purely privateexcept by determining that the taking didnot, in fact, rationally advance the publicinterest. Cf. ante, at 2675–2676 (O’CON-NOR, J., dissenting) (noting the complicat-ed inquiry the Court’s test requires). The

Court is therefore wrong to criticize the‘‘actual use’’ test as ‘‘difficult to adminis-ter.’’ Ante, at 2662. It is far easier toanalyze whether the government owns orthe public has a legal right to use thetaken property than to ask whether thetaking has a ‘‘purely private purpose’’—unless the Court means to eliminate publicuse scrutiny of takings entirely. Ante, at2661–2662, 2667–2668. Obliterating a pro-vision of the Constitution, of course, guar-antees that it will not be misapplied.

For all these reasons, I would revisit ourPublic Use Clause cases and consider re-turning to the original meaning of thePublic Use Clause: that the governmentmay take property only if it actually usesor gives the public a legal right to use theproperty.

IV

The consequences of today’s decision arenot difficult to predict, and promise to beharmful. So-called ‘‘urban renewal’’ pro-grams provide some compensation for theproperties they take, but no compensationis possible for the subjective value of theselands to the individuals displaced and theindignity inflicted by uprooting them fromtheir homes. Allowing the government totake property solely for public purposes isbad enough, but extending the concept ofpublic purpose to encompass any economi-cally beneficial goal guarantees that theselosses will fall disproportionately on poor

3. Some States also promoted the alienabilityof property by abolishing the feudal ‘‘quitrent’’ system, i.e., long-term leases underwhich the proprietor reserved to himself theright to perpetual payment of rents from histenant. See Vance, The Quest for Tenure inthe United States, 33 Yale L.J. 248, 256–257,260–263 (1923). In Hawaii Housing Authori-ty v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81L.Ed.2d 186 (1984), the Court cited those

state policies favoring the alienability of landas evidence that the government’s eminentdomain power was similarly expansive, seeid., at 241–242, and n. 5, 104 S.Ct. 2321. Butthey were uses of the States’ regulatory pow-er, not the takings power, and therefore wereirrelevant to the issue in Midkiff. This mis-match underscores the error of conflating aState’s regulatory power with its taking pow-er.


545 U.S. 523

communities. Those communities are notonly systematically less likely to put theirlands to the highest and best social use,but are also the least politically powerful.If ever there were justification for intru-sive judicial review of constitutional provi-sions that protect ‘‘discrete and insularminorities,’’ United States v. CaroleneProducts Co., 304 U.S. S 522144, 152, n. 4, 58S.Ct. 778, 82 L.Ed. 1234 (1938), surely thatprinciple would apply with great force tothe powerless groups and individuals thePublic Use Clause protects. The deferen-tial standard this Court has adopted forthe Public Use Clause is therefore deeplyperverse. It encourages ‘‘those citizenswith disproportionate influence and powerin the political process, including large cor-porations and development firms,’’ to vic-timize the weak. Ante, at 2677 (O’CON-NOR, J., dissenting).

Those incentives have made the legacyof this Court’s ‘‘public purpose’’ test anunhappy one. In the 1950’s, no doubtemboldened in part by the expansive un-derstanding of ‘‘public use’’ this Courtadopted in Berman, cities ‘‘rushed to drawplans’’ for downtown development. B.Frieden & L. Sagalyn, Downtown, Inc.How America Rebuilds Cities 17 (1989).‘‘Of all the families displaced by urbanrenewal from 1949 through 1963, 63 per-cent of those whose race was known werenonwhite, and of these families, 56 percentof nonwhites and 38 percent of whites hadincomes low enough to qualify for publichousing, which, however, was seldom avail-able to them.’’ Id., at 28, 75 S.Ct. 98.Public works projects in the 1950’s and1960’s destroyed predominantly minoritycommunities in St. Paul, Minnesota, andBaltimore, Maryland. Id., at 28–29, 75S.Ct. 98. In 1981, urban planners in De-troit, Michigan, uprooted the largely ‘‘low-er-income and elderly’’ Poletown neighbor-hood for the benefit of the General MotorsCorporation. J. Wylie, Poletown: Com-

munity Betrayed 58 (1989). Urban renew-al projects have long been associated withthe displacement of blacks; ‘‘[i]n citiesacross the country, urban renewal came tobe known as ‘Negro removal.’ ’’ Pritchett,The ‘‘Public Menace’’ of Blight: UrbanRenewal and the Private Uses of EminentDomain, 21 Yale L. & Pol’y Rev. 1, 47(2003). Over 97 percent of the individualsforcibly removed from their homes by the‘‘slum-clearance’’ project upheld by thisCourt in Berman were black. 348 U.S., at30, 75 S.Ct. 98. Regrettably, the predicta-ble consequence of the Court’s decisionwill be to exacerbate these effects.

S 523* * *

The Court relies almost exclusively onthis Court’s prior cases to derive today’sfar-reaching, and dangerous, result. Seeante, at 2662–2664. But the principles thisCourt should employ to dispose of thiscase are found in the Public Use Clauseitself, not in Justice Peckham’s high opin-ion of reclamation laws, see supra, at 2683.When faced with a clash of constitutionalprinciple and a line of unreasoned caseswholly divorced from the text, history, andstructure of our founding document, weshould not hesitate to resolve the tensionin favor of the Constitution’s originalmeaning. For the reasons I have given,and for the reasons given in JusticeO’CONNOR’s dissent, the conflict of prin-ciple raised by this boundless use of theeminent domain power should be resolvedin petitioners’ favor. I would reverse thejudgment of the Connecticut SupremeCourt.

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Documents

KELO v. CITY OF NEW LONDON, CONN. 2655KELO v. CITY OF NEW LONDON, CONN. 2655 Cite as 125 S.Ct. 2655 (2005) 545 U.S. 469 case number of an earlier, dismissed ap-peal. Brief for Respondent