OPINION OF THE COURT KELO V. NEW LONDON 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 04-108 SUSETTE KELO, et al., PETITIONERS v. CITY OF NEW LONDON, CONNECTICUT, et al.

															on writ of certiorari to the supreme court of
connecticut

															[June 23, 2005]

															   Justice Stevens delivered the
opinion of the Court.

															   In 2000, the city of New London
approved a development plan that, in the words of the Supreme Court
of Connecticut, was “projected to create in excess of 1,000 jobs,
to increase tax and other revenues, and to revitalize an
economically distressed city, including its downtown and waterfront
areas.” 268 Conn. 1, 5, 843 A. 2d 500, 507 (2004). In
assembling the land needed for this project, the city’s development
agent has purchased property from willing sellers and proposes to
use the power of eminent domain to acquire the remainder of the
property from unwilling owners in exchange for just compensation.
The question presented is whether the city’s proposed disposition
of this property qualifies as a “public use” within the meaning of
the Takings Clause of the Fifth Amendment to the
Constitution.[ Footnote 1 ]

															I

															   The city of New London
(hereinafter City) sits at the junction of the Thames River and the
Long Island Sound in southeastern Connecticut. Decades of economic
decline led a state agency in 1990 to designate the City a
“distressed municipality.” In 1996, the Federal Government closed
the Naval Undersea Warfare Center, which had been located in the
Fort Trumbull area of the City and had employed over 1,500 people.
In 1998, the City’s unemployment rate was nearly double that of the
State, and its population of just under 24,000 residents was at its
lowest since 1920.

															   These conditions prompted state
and local officials to target New London, and particularly its Fort
Trumbull area, for economic revitalization. To this end, respondent
New London Development Corporation (NLDC), a private nonprofit
entity established some years earlier to assist the City in
planning economic development, was reactivated. In January 1998,
the State authorized a $5.35 million bond issue to support the
NLDC’s planning activities and a $10 million bond issue toward the
creation of a Fort Trumbull State Park. In February, the
pharmaceutical company Pfizer Inc. announced that it would build a
$300 million research facility on a site immediately adjacent to
Fort Trumbull; local planners hoped that Pfizer would draw new
business to the area, thereby serving as a catalyst to the area’s
rejuvenation. After receiving initial approval from the city
council, the NLDC continued its planning activities and held a
series of neighborhood meetings to educate the public about the
process. In May, the city council authorized the NLDC to formally
submit its plans to the relevant state agencies for
review.[ Footnote 2 ] Upon
obtaining state-level approval, the NLDC finalized an integrated
development plan focused on 90 acres of the Fort Trumbull area.

															   The Fort Trumbull area is situated on a
peninsula that juts into the Thames River. The area comprises
approximately 115 privately owned properties, as well as the 32
acres of land formerly occupied by the naval facility (Trumbull
State Park now occupies 18 of those 32 acres). The development plan
encompasses seven parcels. Parcel 1 is designated for a waterfront
conference hotel at the center of a “small urban village” that will
include restaurants and shopping. This parcel will also have
marinas for both recreational and commercial uses. A pedestrian
“riverwalk” will originate here and continue down the coast,
connecting the waterfront areas of the development. Parcel 2 will
be the site of approximately 80 new residences organized into an
urban neighborhood and linked by public walkway to the remainder of
the development, including the state park. This parcel also
includes space reserved for a new U. S. Coast Guard Museum. Parcel
3, which is located immediately north of the Pfizer facility, will
contain at least 90,000 square feet of research and development
office space. Parcel 4A is a 2.4-acre site that will be used either
to support the adjacent state park, by providing parking or retail
services for visitors, or to support the nearby marina. Parcel 4B
will include a renovated marina, as well as the final stretch of
the riverwalk. Parcels 5, 6, and 7 will provide land for office and
retail space, parking, and water-dependent commercial uses. 1 App.
109–113.

															   The NLDC intended the development plan to
capitalize on the arrival of the Pfizer facility and the new
commerce it was expected to attract. In addition to creating jobs,
generating tax revenue, and helping to “build momentum for the
revitalization of downtown New London,” id. , at 92, the
plan was also designed to make the City more attractive and to
create leisure and recreational opportunities on the waterfront and
in the park.

															   The city council approved the plan in January
2000, and designated the NLDC as its development agent in charge of
implementation. See Conn. Gen. Stat. §8–188 (2005). The city
council also authorized the NLDC to purchase property or to acquire
property by exercising eminent domain in the City’s name. §8–193.
The NLDC successfully negotiated the purchase of most of the real
estate in the 90-acre area, but its negotiations with petitioners
failed. As a consequence, in November 2000, the NLDC initiated the
condemnation proceedings that gave rise to this case.[ Footnote 3 ]

															II

															   Petitioner Susette Kelo has lived
in the Fort Trumbull area since 1997. She has made extensive
improvements to her house, which she prizes for its water view.
Petitioner Wilhelmina Dery was born in her Fort Trumbull house in
1918 and has lived there her entire life. Her husband Charles (also
a petitioner) has lived in the house since they married some 60
years ago. In all, the nine petitioners own 15 properties in Fort
Trumbull—4 in parcel 3 of the development plan and 11 in parcel 4A.
Ten of the parcels are occupied by the owner or a family member;
the other five are held as investment properties. There is no
allegation that any of these properties is blighted or otherwise in
poor condition; rather, they were condemned only because they
happen to be located in the development area.

															   In December 2000, petitioners
brought this action in the New London Superior Court. They claimed,
among other things, that the taking of their properties would
violate the “public use” restriction in the Fifth Amendment. After
a 7-day bench trial, the Superior Court granted a permanent
restraining order prohibiting the taking of the properties located
in parcel 4A (park or marina support). It, however, denied
petitioners relief as to the properties located in parcel 3 (office
space). 2 App. to Pet. for Cert. 343–350.[ Footnote 4 ]

															   After the Superior Court ruled, both sides
took appeals to the Supreme Court of Connecticut. That court held,
over a dissent, that all of the City’s proposed takings were valid.
It began by upholding the lower court’s determination that the
takings 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 determination that the
taking of land, even developed land, as part of an economic
development project is a “public use” and in the “public interest.”
268 Conn., at 18–28, 843 A. 2d, at 515–521. Next, relying on
cases such as Hawaii Housing Authority v. Midkiff , 467
U. S. 229 (1984), and Berman v. Parker , 348 U.
S. 26 (1954), the court held that such economic development
qualified as a valid public use under both the Federal and State
Constitutions. 268 Conn., at 40, 843 A. 2d, at 527.

															   Finally, adhering to its precedents, the court
went on to determine, first, whether the takings of the particular
properties at issue were “reasonably necessary” to achieving the
City’s intended public use, id. , at 82, 843 A. 2d, at
552–553, and, second, whether the takings were for “reasonably
foreseeable needs,” id. , at 93, 843 A. 2d, at
558–559. The court upheld the trial court’s factual findings as to
parcel 3, but reversed the trial court as to parcel 4A, agreeing
with the City that the intended use of this land was sufficiently
definite and had been given “reasonable attention” during the
planning process. Id. , at 120–121, 843 A. 2d, at
574.

															   The three dissenting justices would have
imposed a “heightened” standard of judicial review for takings
justified by economic development. Although they agreed that the
plan was intended to serve a valid public use, they would have
found all the takings unconstitutional because the City had failed
to adduce “clear and convincing evidence” that the economic
benefits of the plan would in fact come to pass. Id. , at
144, 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 determine whether a
city’s decision to take property for the purpose of economic
development satisfies the “public use” requirement of the Fifth
Amendment. 542 U. S. ___ (2004).

															III

															   Two polar propositions are
perfectly clear. On the one hand, it has long been accepted that
the sovereign may not take the property of A for the sole
purpose of transferring it to another private party B ,
even though A is paid just compensation. On the other
hand, it is equally clear that a State may transfer property from
one private party to another if future “use by the public” is the
purpose of the taking; the condemnation of land for a railroad with
common-carrier duties is a familiar example. Neither of these
propositions, however, determines the disposition of this case.

															   As for the first proposition, the
City would no doubt be forbidden from taking petitioners’ land for
the purpose of conferring a private benefit on a particular private
party. See Midkiff, 467 U. S., at 245 (“A purely private
taking could not withstand the scrutiny of the public use
requirement; it would serve no legitimate purpose of government and
would thus be void”); Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403 (1896).[ Footnote 5 ] Nor would
the City be allowed to take property under the mere pretext of a
public purpose, when its actual purpose was to bestow a private
benefit. The takings before us, however, would be executed pursuant
to a “carefully considered” development plan. 268 Conn., at 54, 843
A. 2d, at 536. The trial judge and all the members of the
Supreme Court of Connecticut agreed that there was no evidence of
an illegitimate purpose in this case.[ Footnote 6 ] Therefore, as was true of the statute
challenged in Midkiff, 467 U. S., at 245, the City’s
development plan was not adopted “to benefit a particular class of
identifiable individuals.”

															   On the other hand, this is not a case in which
the City is planning to open the condemned land—at least not in its
entirety—to use by the general public. Nor will the private lessees
of the land in any sense be required to operate like common
carriers, making their services available to all comers. But
although such a projected use would be sufficient to satisfy the
public use requirement, this “Court long ago rejected any literal
requirement that condemned property be put into use for the general
public.” Id., at 244. Indeed, while many state courts in
the mid-19th century endorsed “use by the public” as the proper
definition of public use, that narrow view steadily eroded over
time. Not only was the “use by the public” test difficult to
administer ( e.g. , what proportion of the public need have
access to the property? at what price?),[ Footnote 7 ] but it proved to be impractical given the
diverse and always evolving needs of society.[ Footnote 8 ] Accordingly, when this Court began
applying the Fifth Amendment to the States at the close of the 19th
century, it embraced the broader and more natural interpretation of
public use as “public purpose.” See, e.g. , Fallbrook
Irrigation Dist . v. Bradley , 164 U. S. 112 , 158–164
(1896). Thus, in a case upholding a mining company’s use of an
aerial bucket line to transport ore over property it did not own,
Justice Holmes’ opinion for the Court stressed “the inadequacy of
use by the general public as a universal test.” Strickley v. Highland Boy Gold Mining Co., 200
U. S. 527 , 531 (1906).[ Footnote
9 ] We have repeatedly and consistently rejected that narrow
test ever since.[ Footnote
10 ]

															   The disposition of this case therefore turns
on the question whether the City’s development plan serves a
“public purpose.” Without exception, our cases have defined that
concept broadly, reflecting our longstanding policy of deference to
legislative judgments in this field.

															   In Berman v. Parker, 348 U.
S. 26 (1954), this Court upheld a redevelopment plan targeting
a blighted area of Washington, D. C., in which most of the housing
for the area’s 5,000 inhabitants was beyond repair. Under the plan,
the area would be condemned and part of it utilized for the
construction of streets, schools, and other public facilities. The
remainder of the land would be leased or sold to private parties
for the purpose of redevelopment, including the construction of
low-cost housing.

															   The owner of a department store located in the
area challenged the condemnation, pointing out that his store was
not itself blighted and arguing that the creation of a “better
balanced, more attractive community” was not a valid public use. Id. , at 31 . Writing for a unanimous Court,
Justice Douglas refused to evaluate this claim in isolation,
deferring instead to the legislative and agency judgment that the
area “must be planned as a whole” for the plan to be successful. Id. , at 34. The Court explained that “community
redevelopment programs need not, by force of the Constitution, be
on a piecemeal basis—lot by lot, building by building.” Id. , at 35. The public use underlying the taking was
unequivocally affirmed:

															“We do not sit to determine whether a particular
housing project is or is not desirable. The concept of the public
welfare is broad and inclusive… . The values it represents are
spiritual as well as physical, aesthetic as well as monetary. It is
within the power of the legislature to determine that the community
should be beautiful as well as healthy, spacious as well as clean,
well-balanced as well as carefully patrolled. In the present case,
the Congress and its authorized agencies have made determinations
that take into account a wide variety of values. It is not for us
to reappraise them. If those who govern the District of Columbia
decide that the Nation’s Capital should be beautiful as well as
sanitary, there is nothing in the Fifth Amendment that stands in
the way.” Id. , at 33.

															   In Hawaii Housing
Authority v. Midkiff , 467
U. S. 229 (1984), the Court considered a Hawaii statute whereby
fee title was taken from lessors and transferred to lessees (for
just compensation) in order to reduce the concentration of land
ownership. We unanimously upheld the statute and rejected the Ninth
Circuit’s view that it was “a naked attempt on the part of the
state of Hawaii to take the property of A and transfer it to B
solely for B’s private use and benefit.” Id. , at 235
(internal quotation marks omitted). Reaffirming Berman ’s
deferential approach to legislative judgments in this field, we
concluded that the State’s purpose of eliminating the “social and
economic evils of a land oligopoly” qualified as a valid public
use. 467 U. S., at 241–242. Our opinion also rejected the
contention that the mere fact that the State immediately
transferred the properties to private individuals upon condemnation
somehow diminished the public character of the taking. “[I]t is
only the taking’s purpose, and not its mechanics,” we explained,
that matters in determining public use. Id. , at 244.

															   In that same Term we decided another public
use case that arose in a purely economic context. In Ruckelshaus v. Monsanto , Co., 467
U. S. 986 (1984), the Court dealt with provisions of the
Federal Insecticide, Fungicide, and Rodenticide Act under which the
Environmental Protection Agency could consider the data (including
trade secrets) submitted by a prior pesticide applicant in
evaluating a subsequent application, so long as the second
applicant paid just compensation for the data. We acknowledged that
the “most direct beneficiaries” of these provisions were the
subsequent applicants, id., at 1014, but we nevertheless
upheld the statute under Berman and Midkiff . We
found sufficient Congress’ belief that sparing applicants the cost
of time-consuming research eliminated a significant barrier to
entry in the pesticide market and thereby enhanced competition. 467
U. S., at 1015.

															   Viewed as a whole, our jurisprudence has
recognized that the needs of society have varied between different
parts of the Nation, just as they have evolved over time in
response to changed circumstances. Our earliest cases in particular
embodied a strong theme of federalism, emphasizing the “great
respect” that we owe to state legislatures and state courts in
discerning local public needs. See Hairston v. Danville & Western R. Co ., 208 U. S. 598 , 606–607
(1908) (noting that these needs were likely to vary depending on a
State’s “resources, the capacity of the soil, the relative
importance of industries to the general public welfare, and the
long-established methods and habits of the people”).[ Footnote 11 ] For more than a century, our
public use jurisprudence has wisely eschewed rigid formulas and
intrusive scrutiny in favor of affording legislatures broad
latitude in determining what public needs justify the use of the
takings power.

															IV

															   Those who govern the City were
not confronted with the need to remove blight in the Fort Trumbull
area, but their determination that the area was sufficiently
distressed to justify a program of economic rejuvenation is
entitled to our deference. The City has carefully formulated an
economic development plan that it believes will provide appreciable
benefits to the community, including—but by no means limited to—new
jobs and increased tax revenue. As with other exercises in urban
planning and development,[ Footnote 12 ] the City is endeavoring to coordinate a
variety of commercial, residential, and recreational uses of land,
with the hope that they will form a whole greater than the sum of
its parts. To effectuate this plan, the City has invoked a state
statute that specifically authorizes the use of eminent domain to
promote economic development. Given the comprehensive character of
the plan, the thorough deliberation that preceded its adoption, and
the limited scope of our review, it is appropriate for us, as it
was in Berman , to resolve the challenges of the individual
owners, not on a piecemeal basis, but rather in light of the entire
plan. Because that plan unquestionably serves a public purpose, the
takings challenged here satisfy the public use requirement of the
Fifth Amendment.

															   To avoid this result, petitioners
urge us to adopt a new bright-line rule that economic development
does not qualify as a public use. Putting aside the unpersuasive
suggestion that the City’s plan will provide only purely economic
benefits, neither precedent nor logic supports petitioners’
proposal. Promoting economic development is a traditional and long
accepted function of government. There is, moreover, no principled
way of distinguishing economic development from the other public
purposes that we have recognized. In our cases upholding takings
that facilitated agriculture and mining, for example, we emphasized
the importance of those industries to the welfare of the States in
question, see, e.g., Strickley , 200
U. S. 527 ; in Berman, we endorsed the purpose of
transforming a blighted area into a “well-balanced” community
through redevelopment, 348 U. S., at 33;[ Footnote 13 ] in Midkiff , we upheld the
interest in breaking up a land oligopoly that “created artificial
deterrents to the normal functioning of the State’s residential
land market,” 467 U. S., at 242; and in Monsanto , we
accepted Congress’ purpose of eliminating a “significant barrier to
entry in the pesticide market,” 467 U. S., at 1014–1015. It would
be incongruous to hold that the City’s interest in the economic
benefits to be derived from the development of the Fort Trumbull
area has less of a public character than any of those other
interests. Clearly, there is no basis for exempting economic
development from our traditionally broad understanding of public
purpose.

															   Petitioners contend that using eminent domain
for economic development impermissibly blurs the boundary between
public and private takings. Again, our cases foreclose this
objection. Quite simply, the government’s pursuit of a public
purpose will often benefit individual private parties. For example,
in Midkiff , the forced transfer of property conferred a
direct and significant benefit on those lessees who were previously
unable to purchase their homes. In Monsanto , we recognized
that the “most direct beneficiaries” of the data-sharing provisions
were the subsequent pesticide applicants, but benefiting them in
this way was necessary to promoting competition in the pesticide
market. 467 U. S., at 1014.[ Footnote 14 ] The owner of the department store in Berman objected to “taking from one businessman for the
benefit of another businessman,” 348 U. S., at 33, referring to the
fact that under the redevelopment plan land would be leased or sold
to private developers for redevelopment.[ Footnote 15 ] Our rejection of that contention has
particular relevance to the instant case: “The public end may be as
well or better served through an agency of private enterprise than
through a department of government—or so the Congress might
conclude. We cannot say that public ownership is the sole method of
promoting the public purposes of community redevelopment projects.” Id. , at 34.[ Footnote
16 ]

															   It is further argued that without a
bright-line rule nothing would stop a city from transferring
citizen A ’s property to citizen B for the sole
reason that citizen B will put the property to a more
productive use and thus pay more taxes. Such a one-to-one transfer
of property, executed outside the confines of an integrated
development plan, is not presented in this case. While such an
unusual exercise of government power would certainly raise a
suspicion that a private purpose was afoot,[ Footnote 17 ] the hypothetical cases posited by
petitioners can be confronted if and when they arise.[ Footnote 18 ] They do not warrant the
crafting of an artificial restriction on the concept of public
use.[ Footnote 19 ]

															   Alternatively, petitioners maintain that for
takings of this kind we should require a “reasonable certainty”
that the expected public benefits will actually accrue. Such a
rule, however, would represent an even greater departure from our
precedent. “When the legislature’s purpose is legitimate and its
means are not irrational, our cases make clear that empirical
debates over the wisdom of takings—no less than debates over the
wisdom of other kinds of socioeconomic legislation—are not to be
carried out in the federal courts.” Midkiff, 467 U. S., at
242.[ Footnote 20 ] Indeed,
earlier this Term we explained why similar practical concerns
(among others) undermined the use of the “substantially advances”
formula in our regulatory takings doctrine. See Lingle v. Chevron U. S. A. Inc. , 544 U. S. ___, ___ (2005)
(slip op., at 14–15) (noting that this formula “would empower—and
might often require—courts to substitute their predictive judgments
for those of elected legislatures and expert agencies”). The
disadvantages of a heightened form of review are especially
pronounced in this type of case. Orderly implementation of a
comprehensive redevelopment plan obviously requires that the legal
rights of all interested parties be established before new
construction can be commenced. A constitutional rule that required
postponement of the judicial approval of every condemnation until
the likelihood of success of the plan had been assured would
unquestionably impose a significant impediment to the successful
consummation of many such plans.

															   Just as we decline to second-guess the City’s
considered judgments about the efficacy of its development plan, we
also decline to second-guess the City’s determinations as to what
lands it needs to acquire in order to effectuate the project. “It
is not for the courts to oversee the choice of the boundary line
nor to sit in review on the size of a particular project area. Once
the question of the public purpose has been decided, the amount and
character of land to be taken for the project and the need for a
particular tract to complete the integrated plan rests in the
discretion of the legislative branch.” Berman , 348 U. S.,
at 35–36.

															   In affirming the City’s authority to take
petitioners’ properties, we do not minimize the hardship that
condemnations may entail, notwithstanding the payment of just
compensation.[ Footnote 21 ]
We emphasize that nothing in our opinion precludes any State from
placing further restrictions on its exercise of the takings power.
Indeed, many States already impose “public use” requirements that
are stricter than the federal baseline. Some of these requirements
have been established as a matter of state constitutional
law,[ Footnote 22 ] while
others are expressed in state eminent domain statutes that
carefully limit the grounds upon which takings may be
exercised.[ Footnote 23 ] As
the submissions of the parties and their amici make clear,
the necessity and wisdom of using eminent domain to promote
economic development are certainly matters of legitimate public
debate.[ Footnote 24 ] This
Court’s authority, however, extends only to determining whether the
City’s proposed condemnations are for a “public use” within the
meaning of the Fifth Amendment to the Federal Constitution. Because
over a century of our case law interpreting that provision dictates
an affirmative answer to that question, we may not grant
petitioners the relief that they seek.

															   The judgment of the Supreme Court of
Connecticut is affirmed.

															It is so ordered. Footnote 1 “[N]or shall private property be taken for
public use, without just compensation.” U. S. Const., Amdt. 5. That
Clause is made applicable to the States by the Fourteenth
Amendment. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897). Footnote 2 Various state agencies studied the project’s
economic, environmental, and social ramifications. As part of this
process, a team of consultants evaluated six alternative
development proposals for the area, which varied in extensiveness
and emphasis. The Office of Planning and Management, one of the
primary state agencies undertaking the review, made findings that
the project was consistent with relevant state and municipal
development policies. See 1 App. 89–95. Footnote 3 In the remainder of the opinion we will
differentiate between the City and the NLDC only where
necessary. Footnote 4 While this litigation was pending before the
Superior Court, the NLDC announced that it would lease some of the
parcels to private developers in exchange for their agreement to
develop the land according to the terms of the development plan.
Specifically, the NLDC was negotiating a 99-year ground lease with
Corcoran Jennison, a developer selected from a group of applicants.
The negotiations contemplated a nominal rent of $1 per year, but no
agreement had yet been signed. See 268 Conn. 1, 9, 61, 843
A. 2d 500, 509–510, 540 (2004). Footnote 5 See also Calder v. Bull , 3
Dall. 386, 388 (1798) (“An act of the Legislature (for I cannot
call it a law) contrary to the great first principles of the social
compact, cannot be considered a rightful exercise of legis- lative
authority… . A few instances will suffice to explain what I
mean… [A] law that takes property from A. and gives it to B: It is
against all reason and justice, for a people to entrust a
Legislature with such powers; and, therefore, it cannot be presumed
that they have done it. The genius, the nature, and the spirit, of
our State Governments, amount to a prohibition of such acts of
legislation; and the general principles of law and reason forbid
them” (emphasis deleted)). Footnote 6 See 268 Conn., at 159, 843 A. 2d, at 595
(Zarella, J., concurring in part and dissenting in part) (“The
record clearly demonstrates that the development plan was not
intended to serve the interests of Pfizer, Inc., or any other
private entity, but rather, to revitalize the local economy by
creating temporary and permanent jobs, generating a significant
increase in tax revenue, encouraging spin-off economic activities
and maximizing public access to the waterfront”). And while the
City intends to transfer certain of the parcels to a private
developer in a long-term lease—which developer, in turn, is
expected to lease the office space and so forth to other private
tenants—the identities of those private parties were not known when
the plan was adopted. It is, of course, difficult to accuse the
government of having taken A ’s property to benefit the
private interests of B when the identity of B was
unknown. Footnote 7 See, e.g. , Dayton Gold &
Silver Mining Co. v. Seawell , 11 Nev. 394, 410, 1876
WL 4573, *11 (1876) (“If public occupation and enjoyment of the
object for which land is to be condemned furnishes the only and
true test for the right of eminent domain, then the legislature
would certainly have the constitutional authority to condemn the
lands of any private citizen for the purpose of building hotels and
theaters. Why not? A hotel is used by the public as much as a
railroad. The public have the same right, upon payment of a fixed
compensation, to seek rest and refreshment at a public inn as they
have to travel upon a railroad”). Footnote 8 From upholding the Mill Acts (which
authorized manufacturers dependent on power-producing dams to flood
upstream lands in exchange for just compensation), to approving
takings necessary for the economic development of the West through
mining and irrigation, many state courts either circumvented the
“use by the public” test when necessary or abandoned it completely.
See Nichols, The Meaning of Public Use in the Law of Eminent
Domain, 20 B. U. L. Rev. 615, 619–624 (1940) (tracing
this development and collecting 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 pursuits in this state. All other interests are
subservient to it. Our mountains are almost barren of timber, and
our valleys could never be made profitable for agricultural
purposes except for the fact of a home market having been created
by the mining developments in different sections of the state. The
mining and milling interests give employment to many men, and the
benefits derived from this business are distributed as much, and
sometimes more, among the laboring classes than with the owners of
the mines and mills. … The present prosperity of the state is
entirely due to the mining developments already made, and the
entire people of the state are directly interested in having the
future developments unobstructed by the obstinate action of any
individual or individuals.” Dayton Gold & Silver Mining
Co. , 11 Nev., at 409–410, 1876 WL, at *11. Footnote 9 See also Clark v. Nash, 198 U. S. 361 (1905) (upholding a statute that authorized the owner of arid land
to widen a ditch on his neighbor’s property so as to permit a
nearby stream to irrigate his land). Footnote 10 See, e.g. , Mt. Vernon-Woodberry
Cotton Duck Co. v. Alabama Interstate Power Co. , 240 U. S. 30 , 32
(1916) (“The inadequacy of use by the general public as a universal
test is established”); Ruckelshaus v. Monsanto
Co. , 467
U. S. 986 , 1014–1015 (1984) (“This Court, however, has rejected
the notion that a use is a public use only if the property taken is
put to use for the general public”). Footnote 11 See also Clark , 198 U. S., at
367–368; Strickley v. Highland Boy Gold Mining
Co., 200
U. S. 527 , 531 (1906) (“In the opinion of the legislature and
the Supreme Court of Utah the public welfare of that State demands
that aerial lines between the mines upon its mountain sides and
railways in the valleys below should not be made impossible by the
refusal of a private owner to sell the right to cross his land. The
Constitution of the United States does not require us to say that
they are wrong”); O’Neill v. Leamer, 239 U. S. 244 , 253
(1915) (“States may take account of their special exigencies, and
when the extent of their arid or wet lands is such that a plan for
irrigation or reclamation according to districts may fairly be
regarded as one which promotes the public interest, there is
nothing in the Federal Constitution which denies to them the right
to formulate this policy or to exercise the power of eminent domain
in carrying it into effect. With the local situation the state
court is peculiarly familiar and its judgment is entitled to the
highest respect”). Footnote 12 Cf. Village of Euclid v. Ambler
Realty Co. , 272
U. S. 365 (1926). Footnote 13 It is a misreading of Berman to
suggest that the only public use upheld in that case was the
initial removal of blight. See Reply Brief for Petitioners 8. The
public use described in Berman extended beyond that to
encompass the purpose of developing that area to create
conditions that would prevent a reversion to blight in the future.
See 348 U. S., at 34–35 (“It was not enough, [the experts]
believed, to remove existing buildings that were insanitary or
unsightly. It was important to redesign the whole area so as to
eliminate the conditions that cause slums. . . . The entire area
needed redesigning so that a balanced, integrated plan could be
developed for the region, including not only new homes, but also
schools, churches, parks, streets, and shopping centers. In this
way it was hoped that the cycle of decay of the area could be
controlled and the birth of future slums prevented”). Had the
public use in Berman been defined more narrowly, it would
have been difficult to justify the taking of the plaintiff’s
nonblighted department store. Footnote 14 Any number of cases illustrate that the
achievement of a public good often coincides with the immediate
benefiting of private parties. See, e.g. , National
Railroad Passenger Corporation v. Boston & Maine
Corp., 503 U.
S. 407 , 422 (1992) (public purpose of “facilitating Amtrak’s
rail service” served by taking rail track from one private company
and transferring it to another private company); Brown v. Legal Foundation of Wash. , 538 U. S. 216 (2003)
(provision of legal services to the poor is a valid public
purpose). It is worth noting that in Hawaii Housing
Authority v. Midkiff, 467
U. S. 229 (1984), Monsanto , and Boston & Maine
Corp ., the property in question retained the same use even
after the change of ownership. Footnote 15 Notably, as in the instant case, the private
developers in Berman were required by contract to use the
property to carry out the redevelopment plan. See 348 U. S., at
30. Footnote 16 Nor do our cases support Justice O’Connor’s
novel theory that the government may only take property and
transfer it to private parties when the initial taking eliminates
some “harmful property use.” Post , at 8 (dissenting
opinion). There was nothing “harmful” about the nonblighted
department store at issue in Berman , 348 U.
S. 26 ; see also n. 13, supra; nothing “harmful”
about the lands at issue in the mining and agriculture cases, see, e.g. , Strickley , 200
U. S. 527 ; see also nn. 9, 11, supra; and
certainly nothing “harmful” about the trade secrets owned by the
pesticide manufacturers in Monsanto , 467
U. S. 986 . In each case, the public purpose we upheld depended
on a private party’s future use of the concededly
nonharmful property that was taken.  By focusing on a
property’s future use, as opposed to its past use, our cases are
faithful to the text of the Takings Clause. See U. S. Const., Amdt.
5. (“[N]or shall private property be taken for public use, without
just compensation”). Justice O’Connor’s intimation that a “public
purpose” may not be achieved by the action of private parties, see post , at 8, confuses the purpose of a taking with
its mechanics , a mistake we warned of in Midkiff ,
467 U. S., at 244. See also Berman , 348 U. S., at 33–34
(“The public end may be as well or better served through an agency
of private enterprise than through a department of
government”). Footnote 17 Courts have viewed such aberrations with a
skeptical eye. See, e.g. , 99 Cents Only Stores v. Lancaster Redevelopment Agency , 237 F. Supp. 2d 1123
(CD Cal. 2001); cf. Cincinnati v. Vester , 281 U. S. 439 ,
448 (1930) (taking invalid under state eminent domain statute for
lack of a reasoned explanation). These types of takings may also
implicate other constitutional guarantees. See Village of
Willowbrook v. Olech , 528 U. S. 562 (2000) (per curiam). Footnote 18 Cf. Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218 , 223
(1928) (Holmes, J., dissenting) (“The power to tax is not the power
to destroy while this Court sits”). Footnote 19 A parade of horribles is especially
unpersuasive in this context, since the Takings Clause largely
“operates as a conditional limitation, permitting the government to
do what it wants so long as it pays the charge.” Eastern
Enterprises v. Apfel , 524 U. S. 498 , 545
(1998) (Kennedy, J., concurring in judgment and dissenting in
part). Speaking of the takings power, Justice Iredell observed that
“[i]t is not sufficient to urge, that the power may be abused, for,
such is the nature of all power—such is the tendency of every human
institution: and, it might as fairly be said, that the power of
taxation, which is only circumscribed by the discretion of the
Body, in which it is vested, ought not to be granted, because the
Legislature, disregarding its true objects, might, for visionary
and useless projects, impose a tax to the amount of nineteen
shillings in the pound. We must be content to limit power where we
can, and where we cannot, consistently with its use, we must be
content to repose a salutory confidence.” Calder , 3 Dall.,
at 400 (opinion concurring in result). Footnote 20 See also Boston & Maine Corp., 503 U. S., at 422–423 (“[W]e need not make a specific factual
determination whether the condemnation will accomplish its
objectives”); Monsanto , 467 U. S., at 1015, n. 18
(“Monsanto argues that EPA and, by implication, Congress,
misapprehended the true ‘barriers to entry’ in the pesticide
industry and that the challenged provisions of the law create,
rather than reduce, barriers to entry… . Such economic
arguments are better directed to Congress. The proper inquiry
before this Court is not whether the provisions in fact will
accomplish their stated objectives. Our review is limited to
determining that the purpose is legitimate and that Congress
rationally could have believed that the provisions would promote
that objective”). Footnote 21 The amici raise questions about the
fairness of the measure of just compensation. See, e.g. ,
Brief for American Planning Association et al. as Amici
Curiae 26–30. While important, these questions are not before
us in this litigation. Footnote 22 See, e.g. , County of Wayne v.
Hathcock , 471 Mich. 445, 684 N. W. 2d 765 (2004). Footnote 23 Under California law, for instance, a city
may only take land for economic development purposes in blighted
areas. Cal. Health & Safety Code Ann. §§33030–33037 (West
1997). See, e.g. , Redevelopment Agency of Chula
Vista v. Rados Bros ., 95 Cal. App. 4th 309
(2002). Footnote 24 For example, some argue that the need for
eminent domain has been greatly exaggerated because private
developers can use numerous techniques, including secret
negotiations or precommitment strategies, to overcome holdout
problems and assemble lands for genuinely profitable projects. See
Brief for Jane Jacobs as Amicus Curiae 13–15; see also
Brief for John Norquist as Amicus Curiae . Others argue to
the contrary, urging that the need for eminent domain is especially
great with regard to older, small cities like New London, where
centuries of development have created an extreme overdivision of
land and thus a real market impediment to land assembly. See Brief
for Connecticut Conference for Municipalities et al. as Amici Curiae 13, 21; see also Brief for National League of
Cities et al. as Amici Curiae . KENNEDY, J., CONCURRING KELO V. NEW LONDON 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 04-108 SUSETTE KELO, et al., PETITIONERS v. CITY OF NEW LONDON, CONNECTICUT, et al.

															on writ of certiorari to the supreme court of
connecticut

															[June 23, 2005]

															   Justice Kennedy, concurring.

															   I join the opinion for the Court
and add these further observations.

															   This Court has declared that a taking should
be upheld as consistent with the Public Use Clause, U. S. Const.,
Amdt. 5., as long as it is “rationally related to a conceivable
public purpose.” Hawaii Housing Authority v. Midkiff, 467 U. S. 229 , 241
(1984); see also Berman v. Parker, 348 U. S. 26 (1954). This
deferential standard of review echoes the rational-basis test used
to review economic regulation under the Due Process and Equal
Protection Clauses, see, e.g. , FCC v. Beach
Communications, Inc., 508 U. S. 307 , 313–314
(1993); Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). The determination that a rational-basis standard of review
is appropriate does not, however, alter the fact that transfers
intended to confer benefits on particular, favored private
entities, and with only incidental or pretextual public benefits,
are forbidden by the Public Use Clause.

															   A court applying rational-basis review under
the Public Use Clause should strike down a taking that, by a clear
showing, is intended to favor a particular private party, with only
incidental or pretextual public benefits, just as a court applying
rational-basis review under the Equal Protection Clause must strike
down a government classification that is clearly intended to injure
a particular class of private parties, with only incidental or
pretextual public justifications. See Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 , 446–447,
450 (1985); Department of Agriculture v. Moreno, 413 U. S. 528 ,
533–536 (1973). As the trial court in this case was correct to
observe, “Where the purpose [of a taking] is economic development
and that development is to be carried out by private parties or
private parties will be benefited, the court must decide if the
stated public purpose—economic advantage to a city sorely in need
of it—is only incidental to the benefits that will be confined on
private parties of a development plan.” 2 App. to Pet. for Cert.
263. See also ante , at 7.

															   A court confronted with a plausible accusation
of impermissible favoritism to private parties should treat the
objection as a serious one and review the record to see if it has
merit, though with the presumption that the government’s actions
were reasonable and intended to serve a public purpose. Here, the
trial court conducted a careful and extensive inquiry into
“whether, in fact, the development plan is of primary benefit to …
the developer [ i.e. , Corcoran Jennison], and private
businesses which may eventually locate in the plan area
[ e.g. , Pfizer], and in that regard, only of incidental
benefit to the city.” 2 App. to Pet. for Cert. 261. The trial court
considered testimony from government officials and corporate
officers; id ., at 266–271; documentary evidence of
communications between these parties, ibid .; respondents’
awareness of New London’s depressed economic condition and evidence
corroborating the validity of this concern, id ., at
272–273, 278–279; the substantial commitment of public funds by the
State to the development project before most of the private
beneficiaries were known, id ., at 276; evidence that
respondents reviewed a variety of development plans and chose a
private developer from a group of applicants rather than picking
out a particular transferee beforehand, id ., at 273, 278;
and the fact that the other private beneficiaries of the project
are still unknown because the office space proposed to be built has
not yet been rented, id ., at 278.

															   The trial court concluded, based on these
findings, that benefiting Pfizer was not “the primary motivation or
effect of this development plan”; instead, “the primary motivation
for [respondents] was to take advantage of Pfizer’s presence.” Id ., at 276. Likewise, the trial court concluded that
“[t]here is nothing in the record to indicate that … [respondents]
were motivated by a desire to aid [other] particular private
entities.” Id ., at 278. See also ante , at 7–8.
Even the dissenting justices on the Connecticut Supreme Court
agreed that respondents’ development plan was intended to
revitalize the local economy, not to serve the interests of Pfizer,
Corcoran Jennison, or any other private party. 268 Conn. 1, 159,
843 A. 2d 500, 595 (2004) (Zarella, J., concurring in part and
dissenting in part). This case, then, survives the meaningful
rational basis review that in my view is required under the Public
Use Clause.

															   Petitioners and their amici argue
that any taking justified by the promotion of economic development
must be treated by the courts as per se invalid, or at
least presumptively invalid. Petitioners overstate the need for
such a rule, however, by making the incorrect assumption that
review under Berman and Midkiff imposes no
meaningful judicial limits on the government’s power to condemn any
property it likes. A broad per se rule or a strong
presumption of invalidity, furthermore, would prohibit a large
number of government takings that have the purpose and expected
effect of conferring substantial benefits on the public at large
and so do not offend the Public Use Clause.

															   My agreement with the Court that a presumption
of invalidity is not warranted for economic development takings in
general, or for the particular takings at issue in this case, does
not foreclose the possibility that a more stringent standard of
review than that announced in Berman and Midkiff might be appropriate for a more narrowly drawn category of takings.
There may be private transfers in which the risk of undetected
impermissible favoritism of private parties is so acute that a
presumption (rebuttable or otherwise) of invalidity is warranted
under the Public Use Clause. Cf. Eastern Enterprises v. Apfel, 524
U. S. 498 , 549–550 (1998) (Kennedy, J., concurring in judgment
and dissenting in part) (heightened scrutiny for retroactive
legislation under the Due Process Clause). This demanding level of
scrutiny, however, is not required simply because the purpose of
the taking is economic development.

															   This is not the occasion for conjecture as to
what sort of cases might justify a more demanding standard, but it
is appropriate to underscore aspects of the instant case that
convince me no departure from Berman and Midkiff is appropriate here. This taking occurred in the context of a
comprehensive development plan meant to address a serious city-wide
depression, and the projected economic benefits of the project
cannot be characterized as de minimus . The identity of
most of the private beneficiaries were unknown at the time the city
formulated its plans. The city complied with elaborate procedural
requirements that facilitate review of the record and inquiry into
the city’s purposes. In sum, while there may be categories of cases
in which the transfers are so suspicious, or the procedures
employed so prone to abuse, or the purported benefits are so
trivial or implausible, that courts should presume an impermissible
private purpose, no such circumstances are present in this
case.

															***

															   For the foregoing reasons, I join
in the Court’s opinion. O'CONNOR, J., DISSENTING KELO V. NEW LONDON 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 04-108 SUSETTE KELO, et al., PETITIONERS v. CITY OF NEW LONDON, CONNECTICUT, et al.

															on writ of certiorari to the supreme court of
connecticut

															[June 23, 2005]

															   Justice O’Connor, with whom The
Chief Justice, Justice Scalia, and Justice Thomas join,
dissenting.

															   Over two centuries ago, just
after the Bill of Rights was ratified, Justice Chase wrote:

															“An act of the Legislature (for I cannot call it a
law) contrary to the great first principles of the social compact,
cannot be considered a rightful exercise of legislative
authority … . A few instances will suffice to explain
what I mean… . [A] law that takes property from A. and gives
it to B: It is against all reason and justice, for a people to
entrust a Legislature with such powers; and, therefore, it cannot
be presumed that they have done it.” Calder v. Bull , 3 Dall. 386, 388 (1798) (emphasis deleted).

															Today the Court abandons this long-held, basic
limitation on government power. Under the banner of economic
development, all private property is now vulnerable to being taken
and transferred to another private owner, so long as it might be
upgraded— i.e. , given to an owner who will use it in a way
that the legislature deems more beneficial to the public—in the
process. To reason, as the Court does, that the incidental public
benefits resulting from the subsequent ordinary use of private
property render economic development takings “for public use” is to
wash out any distinction between private and public use of
property—and thereby effectively to delete the words “for public
use” from the Takings Clause of the Fifth Amendment. Accordingly I
respectfully dissent.

															I

															   Petitioners are nine resident or
investment owners of 15 homes in the Fort Trumbull neighborhood of
New London, Connecticut. Petitioner Wilhelmina Dery, for example,
lives in a house on Walbach Street that has been in her family for
over 100 years. She was born in the house in 1918; her husband,
petitioner Charles Dery, moved into the house when they married in
1946. Their son lives next door with his family in the house he
received as a wedding gift, and joins his parents in this suit. Two
petitioners keep rental properties in the neighborhood.

															   In February 1998, Pfizer Inc.,
the pharmaceuticals manufacturer, announced that it would build a
global research facility near the Fort Trumbull neighborhood. Two
months later, New London’s city council gave initial approval for
the New London Development Corporation (NLDC) to prepare the
development plan at issue here. The NLDC is a private, nonprofit
corporation whose mission is to assist the city council in economic
development planning. It is not elected by popular vote, and its
directors and employees are privately appointed. Consistent with
its mandate, the NLDC generated an ambitious plan for redeveloping
90 acres of Fort Trumbull in order to “complement the facility that
Pfizer was planning to build, create jobs, increase tax and other
revenues, encourage public access to and use of the city’s
waterfront, and eventually ‘build momentum’ for the revitalization
of the rest of the city.” App. to Pet. for Cert. 5.

															   Petitioners own properties in two of the
plan’s seven parcels—Parcel 3 and Parcel 4A. Under the plan, Parcel
3 is slated for the construction of research and office space as a
market develops for such space. It will also retain the existing
Italian Dramatic Club (a private cultural organization) though the
homes of three plaintiffs in that parcel are to be demolished.
Parcel 4A is slated, mysteriously, for “ ‘park
support.’ ” Id., at 345–346. At oral argument,
counsel for respondents conceded the vagueness of this proposed
use, and offered that the parcel might eventually be used for
parking. Tr. of Oral Arg. 36.

															   To save their homes, petitioners sued New
London and the NLDC, to whom New London has delegated eminent
domain power. Petitioners maintain that the Fifth Amendment
prohibits the NLDC from condemning their properties for the sake of
an economic development plan. Petitioners are not hold-outs; they
do not seek increased compensation, and none is opposed to new
development in the area. Theirs is an objection in principle: They
claim that the NLDC’s proposed use for their confiscated property
is not a “public” one for purposes of the Fifth Amendment. While
the government may take their homes to build a road or a railroad
or to eliminate a property use that harms the public, say
petitioners, it cannot take their property for the private use of
other owners simply because the new owners may make more productive
use of the property.

															II

															   The Fifth Amendment to the
Constitution, made applicable to the States by the Fourteenth
Amendment, provides that “private property [shall not] be taken for
public use, without just compensation.” When interpreting the
Constitution, we begin with the unremarkable presumption that every
word in the document has independent meaning, “that no word was
unnecessarily used, or needlessly added.” Wright v. United States , 302 U. S. 583 , 588
(1938). In keeping with that presumption, we have read the Fifth
Amendment’s language to impose two distinct conditions on the
exercise of eminent domain: “the taking must be for a ‘public use’
and ‘just compensation’ must be paid to the owner.” Brown v. Legal Foundation of Wash. , 538 U. S. 216 , 231–232
(2003).

															   These two limitations serve to
protect “the security of Property,” which Alexander Hamilton
described to the Philadelphia Convention as one of the “great
obj[ects] of Gov[ernment].” 1 Records of the Federal Convention of
1787, p. 302 (M. Farrand ed. 1934). Together they ensure stable
property ownership by providing safeguards against excessive,
unpredictable, or unfair use of the government’s eminent domain
power—particularly against those owners who, for whatever reasons,
may be unable to protect themselves in the political process
against the majority’s will.

															   While the Takings Clause presupposes that
government can take private property without the owner’s consent,
the just compensation requirement spreads the cost of condemnations
and thus “prevents the public from loading upon one individual more
than his just share of the burdens of government.” Monongahela
Nav. Co. v. United States , 148 U. S. 312 , 325
(1893); see also Armstrong v. United States , 364 U. S. 40 , 49
(1960). The public use requirement, in turn, imposes a more basic
limitation, circumscribing the very scope of the eminent domain
power: Government may compel an individual to forfeit her property
for the public’s use, but not for the benefit of another
private person. This requirement promotes fairness as well as
security. Cf. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency , 535 U. S. 302 , 336
(2002) (“The concepts of ‘fairness and justice’ … underlie the
Takings Clause”).

															   Where is the line between “public” and
“private” property use? We give considerable deference to
legislatures’ determinations about what governmental activities
will advantage the public. But were the political branches the sole
arbiters of the public-private distinction, the Public Use Clause
would amount to little more than hortatory fluff. An external,
judicial check on how the public use requirement is interpreted,
however limited, is necessary if this constraint on government
power is to retain any meaning. See Cincinnati v. Vester , 281
U. S. 439 , 446 (1930) (“It is well established that … the
question [of] what is a public use is a judicial one”).

															   Our cases have generally identified three
categories of takings that comply with the public use requirement,
though it is in the nature of things that the boundaries between
these categories are not always firm. Two are relatively
straightforward and uncontroversial. First, the sovereign may
transfer private property to public ownership—such as for a road, a
hospital, or a military base. See, e.g. , Old Dominion
Land Co. v. United States , 269 U. S. 55 (1925); Rindge Co. v. County of Los Angeles , 262 U. S. 700 (1923).
Second, the sovereign may transfer private property to private
parties, often common carriers, who make the property available for
the public’s use—such as with a railroad, a public utility, or a
stadium. See, e.g. , National Railroad Passenger
Corporation v. Boston & Maine Corp ., 503 U. S. 407 (1992); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama
Interstate Power Co. , 240 U. S. 30 (1916). But
“public ownership” and “use-by-the-public” are sometimes too
constricting and impractical ways to define the scope of the Public
Use Clause. Thus we have allowed that, in certain circumstances and
to meet certain exigencies, takings that serve a public purpose
also satisfy the Constitution even if the property is destined for
subsequent private use. See, e.g. , Berman v. Parker , 348
U. S. 26 (1954); Hawaii Housing Authority v. Midkiff , 467 U. S. 229 (1984).

															   This case returns us for the
first time in over 20 years to the hard question of when a
purportedly “public purpose” taking meets the public use
requirement. It presents an issue of first impression: Are economic
development takings constitutional? I would hold that they are not.
We are guided by two precedents about the taking of real property
by eminent domain. In Berman , we upheld takings within a
blighted neighborhood of Washington, D. C. The neighborhood
had so deteriorated that, for example, 64.3% of its dwellings were
beyond repair. 348 U. S., at 30. It had become burdened with
“overcrowding of dwellings,” “lack of adequate streets and alleys,”
and “lack of light and air.” Id., at 34. Congress had
determined that the neighborhood had become “injurious to the
public health, safety, morals, and welfare” and that it was
necessary to “eliminat[e] all such injurious conditions by
employing all means necessary and appropriate for the purpose,”
including eminent domain. Id ., at 28. Mr. Berman’s
department store was not itself blighted. Having approved of
Congress’ decision to eliminate the harm to the public emanating
from the blighted neighborhood, however, we did not second-guess
its decision to treat the neighborhood as a whole rather than
lot-by-lot. Id ., at 34–35; see also Midkiff , 467
U. S., at 244 (“it is only the taking’s purpose, and not its
mechanics, that must pass scrutiny”).

															   In Midkiff , we upheld a
land condemnation scheme in Hawaii whereby title in real property
was taken from lessors and transferred to lessees. At that time,
the State and Federal Governments owned nearly 49% of the State’s
land, and another 47% was in the hands of only 72 private
landowners. Concentration of land ownership was so dramatic that on
the State’s most urbanized island, Oahu, 22 landowners owned 72.5%
of the fee simple titles. Id. , at 232. The Hawaii
Legislature had concluded that the oligopoly in land ownership was
“skewing the State’s residential fee simple market, inflating land
prices, and injuring the public tranquility and welfare,” and
therefore enacted a condemnation scheme for redistributing title. Ibid .

															   In those decisions, we emphasized the
importance of deferring to legislative judgments about public
purpose. Because courts are ill-equipped to evaluate the efficacy
of proposed legislative initiatives, we rejected as unworkable the
idea of courts’ “ ‘deciding on what is and is not a
governmental function and … invalidating legislation on the basis
of their view on that question at the moment of decision, a
practice which has proved impracticable in other fields.’ ” Id. , at 240–241 (quoting United States ex rel.
TVA v. Welch , 327 U. S. 546 , 552
(1946)); see Berman , supra , at 32 (“[T]he
legislature, not the judiciary, is the main guardian of the public
needs to be served by social legislation”); see also Lingle v. Chevron U. S. A., Inc. , 544 U. S.
__ (2005). Likewise, we recognized our inability to evaluate
whether, in a given case, eminent domain is a necessary means by
which to pursue the legislature’s ends. Midkiff , supra , at 242; Berman , supra , at
103.

															   Yet for all the emphasis on deference, Berman and Midkiff hewed to a bedrock principle
without which our public use jurisprudence would collapse: “A
purely private taking could not withstand the scrutiny of the
public use requirement; it would serve no legitimate purpose of
government and would thus be void.” Midkiff , 467 U. S., at
245; id ., at 241 (“[T]he Court’s cases have repeatedly
stated that ‘one person’s property may not be taken for the benefit
of another private person without a justifying public purpose, even
though compensation be paid’ ” (quoting Thompson v. Consolidated Gas Util. Corp ., 300 U. S. 55 , 80
(1937))); see also Missouri Pacific R. Co. v. Nebraska , 164 U. S. 403 , 417
(1896). To protect that principle, those decisions reserved “a role
for courts to play in reviewing a legislature’s judgment of what
constitutes a public use … [though] the Court in Berman made clear that it is ‘an extremely narrow’ one.” Midkiff , supra , at 240 (quoting Berman , supra , at
32).

															   The Court’s holdings in Berman and Midkiff were true to the principle underlying the Public
Use Clause. In both those cases, the extraordinary, precondemnation
use of the targeted property inflicted affirmative harm on
society—in Berman through blight resulting from extreme
poverty and in Midkiff through oligopoly resulting from
extreme wealth. And in both cases, the relevant legislative body
had found that eliminating the existing property use was necessary
to remedy the harm. Berman , supra , at 28–29; Midkiff , supra , at 232. Thus a public purpose was
realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that
the property was turned over to private use. Here, in contrast, New
London does not claim that Susette Kelo’s and Wilhelmina Dery’s
well-maintained homes are the source of any social harm. Indeed, it
could not so claim without adopting the absurd argument that any
single-family home that might be razed to make way for an apartment
building, or any church that might be replaced with a retail store,
or any small business that might be more lucrative if it were
instead part of a national franchise, is inherently harmful to
society and thus within the government’s power to condemn.

															   In moving away from our decisions sanctioning
the condemnation of harmful property use, the Court today
significantly expands the meaning of public use. It holds that the
sovereign may take private property currently put to ordinary
private use, and give it over for new, ordinary private use, so
long as the new use is predicted to generate some secondary benefit
for the public—such as increased tax revenue, more jobs, maybe even
aesthetic pleasure. But nearly any lawful use of real private
property can be said to generate some incidental benefit to the
public. Thus, if predicted (or even guaranteed) positive
side-effects are enough to render transfer from one private party
to another constitutional, then the words “for public use” do not
realistically exclude any takings, and thus do not exert
any constraint on the eminent domain power.

															   There is a sense in which this
troubling result follows from errant language in Berman and Midkiff . In discussing whether takings within a
blighted neighborhood were for a public use, Berman began
by observing: “We deal, in other words, with what traditionally has
been known as the police power.” 348 U. S., at 32. From there it
declared that “[o]nce the object is within the authority of
Congress, the right to realize it through the exercise of eminent
domain is clear.” Id ., at 33. Following up, we said in Midkiff that “[t]he ‘public use’ requirement is
coterminous with the scope of a sovereign’s police powers.” 467 U.
S., at 240. This language was unnecessary to the specific holdings
of those decisions. Berman and Midkiff simply did
not put such language to the constitutional test, because the
takings in those cases were within the police power but also for
“public use” for the reasons I have described. The case before us
now demonstrates why, when deciding if a taking’s purpose is
constitutional, the police power and “public use” cannot always be
equated.   The Court protests that it does not
sanction the bare transfer from A to B for B’s benefit. It suggests
two limitations on what can be taken after today’s decision. First,
it maintains a role for courts in ferreting out takings whose sole
purpose is to bestow a benefit on the private transferee—without
detailing how courts are to conduct that complicated inquiry. Ante , at 7. For his part, Justice Kennedy suggests that
courts may divine illicit purpose by a careful review of the record
and the process by which a legislature arrived at the decision to
take—without specifying what courts should look for in a case with
different facts, how they will know if they have found it, and what
to do if they do not. Ante , at 2–3 (concurring opinion).
Whatever the details of Justice Kennedy’s as-yet-undisclosed test,
it is difficult to envision anyone but the “stupid staff[er]”
failing it. See Lucas v. South Carolina Coastal
Council , 505
U. S. 1003 , 1025–1026, n. 12 (1992). The trouble with
economic development takings is that private benefit and incidental
public benefit are, by definition, merged and mutually reinforcing.
In this case, for example, any boon for Pfizer or the plan’s
developer is difficult 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 to isolate
the motives behind a given taking, the gesture toward a purpose
test is theoretically flawed. If it is true that incidental public
benefits from new private use are enough to ensure the “public
purpose” in a taking, why should it matter, as far as the Fifth
Amendment is concerned, what inspired the taking in the first
place? How much the government does or does not desire to benefit a
favored private party has no bearing on whether an economic
development taking will or will not generate secondary benefit for
the public. And whatever the reason for a given condemnation, the
effect is the same from the constitutional perspective—private
property is forcibly relinquished to new private ownership.

															   A second proposed limitation is
implicit in the Court’s opinion. The logic of today’s decision is
that eminent domain may only be used to upgrade—not
downgrade—property. At best this makes the Public Use Clause
redundant with the Due Process Clause, which already prohibits
irrational government action. See Lingle , 544 U. S. __.
The Court rightfully admits, however, that the judiciary cannot get
bogged down in predictive judgments about whether the public will
actually be better off after a property transfer. In any event,
this constraint has no realistic import. For who among us can say
she already makes the most productive or attractive possible use of
her property? The specter of condemnation hangs over all property.
Nothing is to prevent the State from replacing any Motel 6 with a
Ritz-Carlton, any home with a shopping mall, or any farm with a
factory. Cf. Bugryn v. Bristol , 63 Conn. App. 98,
774 A. 2d 1042 (2001) (taking the homes and farm of four
owners in their 70’s and 80’s and giving it to an “industrial
park”); 99 Cents Only Stores v. Lancaster
Redevelopment Authority , 237 F. Supp. 2d 1123 (CD Cal.
2001) (attempted taking of 99 Cents store to replace with a
Costco); Poletown Neighborhood Council v. Detroit , 410 Mich. 616, 304 N. W. 2d 455 (1981)
(taking a working-class, immigrant community in Detroit and giving
it to a General Motors assembly plant), overruled by County of
Wayne v. Hathcock , 471 Mich. 415, 684 N. W. 2d
765 (2004); Brief for the Becket Fund for Religious Liberty as Amicus Curiae 4–11 (describing takings of religious
institutions’ properties); Institute for Justice, D. Berliner,
Public Power, Private Gain: A Five-Year, State-by-State Report
Examining the Abuse of Eminent Domain (2003) (collecting accounts
of economic development takings).

															   The Court also puts special emphasis on facts
peculiar to this case: The NLDC’s plan is the product of a
relatively careful deliberative process; it proposes to use eminent
domain for a multipart, integrated plan rather than for isolated
property transfer; it promises an array of incidental benefits
(even aesthetic ones), not just increased tax revenue; it comes on
the heels of a legislative determination that New London is a
depressed municipality. See, e.g ., ante , at 16
(“[A] one-to-one transfer of property, executed outside the
confines of an integrated development plan, is not presented in
this case”). Justice Kennedy, too, takes great comfort in these
facts. Ante , at 4 (concurring opinion). But none has legal
significance to blunt the force of today’s holding. If legislative
prognostications about the secondary public benefits of a new use
can legitimate a taking, there is nothing in the Court’s rule or in
Justice Kennedy’s gloss on that rule to prohibit property transfers
generated with less care, that are less comprehensive, that happen
to result from less elaborate process, whose only projected
advantage is the incidence of higher taxes, or that hope to
transform an already prosperous city into an even more prosperous
one.

															   Finally, in a coda, the Court suggests that
property owners should turn to the States, who may or may not
choose to impose appropriate limits on economic development
takings. Ante , at 19. This is an abdication of our
responsibility. States play many important functions in our system
of dual sovereignty, but compensating for our refusal to enforce
properly the Federal Constitution (and a provision meant to curtail
state action, no less) is not among them.

															***

															   It was possible after Berman and Midkiff to imagine unconstitutional
transfers from A to B. Those decisions endorsed government
intervention when private property use had veered to such an
extreme that the public was suffering as a consequence. Today
nearly all real property is susceptible to condemnation on the
Court’s theory. In the prescient words of a dissenter from the
infamous decision in Poletown , “[n]ow that we have
authorized local legislative bodies to decide that a different
commercial or industrial use of property will produce greater
public benefits than its present use, no homeowner’s, merchant’s or
manufacturer’s property, however productive or valuable to its
owner, is immune from condemnation for the benefit of other private
interests that will put it to a ‘higher’ use.” 410 Mich., at
644–645, 304 N. W. 2d, at 464 (opinion of Fitzgerald, J.).
This is why economic development takings “seriously jeopardiz[e]
the security of all private property ownership.” Id ., at
645, 304 N. W. 2d, at 465 (Ryan, J., dissenting).

															   Any property may now be taken for the benefit
of another private party, but the fallout from this decision will
not be random. The beneficiaries are likely to be those citizens
with disproportionate influence and power in the political process,
including large corporations and development firms. As for the
victims, the government now has license to transfer property from
those with fewer resources to those with more. The Founders cannot
have intended this perverse result. “[T]hat alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own .” For the National Gazette, Property, (Mar. 29, 1792),
reprinted in 14 Papers of James Madison 266 (R. Rutland et al.
eds. 1983).

															   I would hold that the takings in both Parcel 3
and Parcel 4A are unconstitutional, reverse the judgment of the
Supreme Court of Connecticut, and remand for further
proceedings. THOMAS, J., DISSENTING KELO V. NEW LONDON 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 04-108 SUSETTE KELO, et al., PETITIONERS v. CITY OF NEW LONDON, CONNECTICUT, et al.

															on writ of certiorari to the supreme court of
connecticut

															[June 23, 2005]

															   Justice Thomas, dissenting.

															   Long ago, William Blackstone
wrote that “the law of the land … postpone[s] even public necessity
to the sacred and inviolable rights of private property.” 1
Commentaries on the Laws of England 134–135 (1765) (hereinafter
Blackstone). The Framers embodied that principle in the
Constitution, allowing the government to take property not for
“public necessity,” but instead for “public use.” Amdt. 5. Defying
this understanding, the Court replaces the Public Use Clause with a
“ ‘[P]ublic [P]urpose’ ” Clause, ante , at 9–10
(or perhaps the “Diverse and Always Evolving Needs of Society”
Clause, ante , at 8 (capitalization added)), a restriction
that is satisfied, the Court instructs, so long as the purpose is
“legitimate” and the means “not irrational,” ante , at 17
(internal quotation marks omitted). This deferential shift in
phraseology enables the Court to hold, against all common sense,
that a costly urban-renewal project whose stated purpose is a vague
promise of new jobs and increased tax revenue, but which is also
suspiciously agreeable to the Pfizer Corporation, is for a “public
use.”

															   I cannot agree. If such “economic development”
takings are for a “public use,” any taking is, and the Court has
erased the Public Use Clause from our Constitution, as Justice
O’Connor powerfully argues in dissent. Ante , at 1–2, 8–13.
I do not believe that this Court can eliminate liberties expressly
enumerated in the Constitution and therefore join her dissenting
opinion. Regrettably, however, the Court’s error runs deeper than
this. Today’s decision is simply the latest in a string of our
cases construing the Public Use Clause to be a virtual nullity,
without the slightest nod to its original meaning. In my view, the
Public Use Clause, originally understood, is a meaningful limit on
the government’s eminent domain power. Our cases have strayed from
the Clause’s original meaning, and I would reconsider them.

															I

															   The Fifth Amendment provides:

															“No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War or
public danger; nor shall any person be subject for the same offence
to be twice put in jeopardy of life or limb, nor shall be compelled
in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process, of
law; nor shall private property be taken for public use,
without just compensation .” (Emphasis added.)

															It is the last of these liberties, the Takings
Clause, that is at issue in this case. In my view, it is
“imperative that the Court maintain absolute fidelity to” the
Clause’s express limit on the power of the government over the
individual, no less than with every other liberty expressly
enumerated in the Fifth Amendment or the Bill of Rights more
generally. Shepard v. United States, 544 U. S.
___, ___ (2005) (slip op., at 2) (Thomas, J., concurring in part
and concurring in judgment) (internal quotation marks omitted).

															   Though one component of the protection
provided by the Takings Clause is that the government can take
private property only if it provides “just compensation” for the
taking, the Takings Clause also prohibits the government from
taking property except “for public use.” Were it otherwise, the
Takings Clause would either be meaningless or empty. If the Public
Use Clause served no function other than to state that the
government may take property through its eminent domain power—for
public or private uses—then it would be surplusage. See ante , at 3–4 (O’Connor, J., dissenting); see also Marbury v. Madison, 1 Cranch 137, 174 (1803) (“It
cannot be presumed that any clause in the constitution is intended
to be without effect”); Myers v. United States, 272 U. S. 52 , 151
(1926). Alternatively, the Clause could distinguish those takings
that require compensation from those that do not. That
interpretation, however, “would permit private property to be taken
or appropriated for private use without any compensation whatever.” Cole v. La Grange, 113 U. S. 1 , 8 (1885)
(interpreting same language in the Missouri Public Use Clause). In
other words, the Clause would require the government to compensate
for takings done “for public use,” leaving it free to take property
for purely private uses without the payment of compensation. This
would contradict a bedrock principle well established by the time
of the founding: that all takings required the payment of
compensation. 1 Blackstone 135; 2 J. Kent, Commentaries on American
Law 275 (1827) (hereinafter Kent); J. Madison, for the National
Property Gazette, (Mar. 27, 1792), in 14 Papers of James Madison
266, 267 (R. Rutland et al. eds. 1983) (arguing that no
property “shall be taken directly even for public use
without indemnification to the owner”).[ Footnote 1 ] The Public Use Clause, like the Just
Compensation Clause, is therefore an express limit on the
government’s power of eminent domain.

															   The most natural reading of the Clause is that
it allows the government to take property only if the government
owns, or the public has a legal right to use, the property, as
opposed to taking it for any public purpose or necessity
whatsoever. At the time of the founding, dictionaries primarily
defined the noun “use” as “[t]he act of employing any thing to any
purpose.” 2 S. Johnson, A Dictionary of the English Language 2194
(4th ed. 1773) (hereinafter Johnson). The term “use,” moreover, “is
from the Latin utor , which means ‘to use, make use of,
avail one’s self of, employ, apply, enjoy, etc.” J. Lewis, Law of
Eminent Domain §165, p. 224, n. 4 (1888) (hereinafter Lewis).
When the government takes property and gives it to a private
individual, and the public has no right to use the property, it
strains language to say that the public is “employing” the
property, regardless of the incidental benefits that might accrue
to the public from the private use. The term “public use,” then,
means that either the government or its citizens as a whole must
actually “employ” the taken property. See id. , at 223
(reviewing founding-era dictionaries).

															   Granted, another sense of the word “use” was
broader in meaning, extending to “[c]onvenience” or “help,” or
“[q]ualities that make a thing proper for any purpose.” 2 Johnson
2194. Nevertheless, read in context, the term “public use”
possesses the narrower meaning. Elsewhere, the Constitution twice
employs the word “use,” both times in its narrower sense. Claeys,
Public-Use Limitations and Natural Property Rights, 2004 Mich. St.
L. Rev. 877, 897 (hereinafter Public Use Limitations). Article
1, §10 provides that “the net Produce of all Duties and Imposts,
laid by any State on Imports or Exports, shall be for the Use of
the Treasury of the United States,” meaning the Treasury itself
will control the taxes, not use it to any beneficial end. And
Article I, §8 grants Congress power “[t]o raise and support Armies,
but no Appropriation of Money to that Use shall be for a longer
Term than two Years.” Here again, “use” means “employed to raise
and support Armies,” not anything directed to achieving any
military end. The same word in the Public Use Clause should be
interpreted to have the same meaning.

															   Tellingly, the phrase “public use” contrasts
with the very different phrase “general Welfare” used elsewhere in
the Constitution. See ibid. (“Congress shall have Power To
… provide for the common Defence and general Welfare of the United
States”); preamble (Constitution established “to promote the
general Welfare”). The Framers would have used some such broader
term if they had meant the Public Use Clause to have a similarly
sweeping scope. Other founding-era documents made the contrast
between these two usages still more explicit. See Sales, Classical
Republicanism and the Fifth Amendment’s “Public Use” Requirement,
49 Duke L. J. 339, 368 (2000) (hereinafter Sales) (noting
contrast between, on the one hand, the term “public use” used by 6
of the first 13 States and, on the other, the terms “public
exigencies” employed in the Massachusetts Bill of Rights and the
Northwest Ordinance, and the term “public necessity” used in the
Vermont Constitution of 1786). The Constitution’s text, in short,
suggests that the Takings Clause authorizes the taking of property
only if the public has a right to employ it, not if the public
realizes any conceivable benefit from the taking.

															   The Constitution’s common-law background
reinforces this understanding. The common law provided an express
method of eliminating uses of land that adversely impacted the
public welfare: nuisance law. Blackstone and Kent, for instance,
both carefully distinguished the law of nuisance from the power of
eminent domain. Compare 1 Blackstone 135 (noting government’s power
to take private property with compensation), with 3 id. ,
at 216 (noting action to remedy “ public …nuisances, which
affect the public and are an annoyance to all the king’s
subjects”); see also 2 Kent 274–276 (distinguishing the two).
Blackstone rejected the idea that private property could be taken
solely for purposes of any public benefit. “So great … is the
regard of the law for private property,” he explained, “that it
will not authorize the least violation of it; no, not even for the
general good of the whole community.” 1 Blackstone 135. He
continued: “If a new road … were to be made through the grounds of
a private person, it might perhaps be extensively beneficial to the
public; but the law permits no man, or set of men, to do this
without the consent of the owner of the land.” Ibid . Only
“by giving [the landowner] full indemnification” could the
government take property, and even then “[t]he public [was] now
considered as an individual, treating with an individual for an
exchange.” Ibid. When the public took property, in other
words, it took it as an individual buying property from another
typically would: for one’s own use. The Public Use Clause, in
short, embodied the Framers’ understanding that property is a
natural, fundamental right, prohibiting the government from
“tak[ing] property from A. and giv[ing] it to B.” Calder v. Bull, 3 Dall. 386, 388 (1798); see also Wilkinson v. Leland, 2 Pet. 627, 658 (1829); Vanhorne’s Lessee v. Dorrance, 2 Dall. 304, 311
(CC Pa. 1795).

															   The public purpose interpretation of the
Public Use Clause also unnecessarily duplicates a similar inquiry
required by the Necessary and Proper Clause. The Takings Clause is
a prohibition, not a grant of power: The Constitution does not
expressly grant the Federal Government the power to take property
for any public purpose whatsoever. Instead, the Government may take
property only when necessary and proper to the exercise of an
expressly enumerated power. See Kohl v. United
States, 91 U. S.
367 , 371–372 (1876) (noting Federal Government’s power under
the Necessary and Proper Clause to take property “needed for forts,
armories, and arsenals, for navy-yards and light-houses, for
custom-houses, post-offices, and court-houses, and for other public
uses”). For a law to be within the Necessary and Proper Clause, as
I have elsewhere explained, it must bear an “obvious, simple, and
direct relation” to an exercise of Congress’ enumerated powers, Sabri v. United States, 541 U. S. 600 , 613
(2004) (Thomas, J., concurring in judgment), and it must not
“subvert basic principles of” constitutional design, Gonzales v. Raich, ante, at __ (Thomas, J.,
dissenting). In other words, a taking is permissible under the
Necessary and Proper Clause only if it serves a valid public
purpose. Interpreting the Public Use Clause likewise to limit the
government to take property only for sufficiently public purposes
replicates this inquiry. If this is all the Clause means, it is,
once again, surplusage. See supra , at 3. The Clause is
thus most naturally read to concern whether the property is used by
the public or the government, not whether the purpose of the taking
is legitimately public.

															II

															   Early American eminent domain
practice largely bears out this understanding of the Public Use
Clause. This practice concerns state limits on eminent domain
power, not the Fifth Amendment, since it was not until the late
19th century that the Federal Government began to use the power of
eminent domain, and since the Takings Clause did not even arguably
limit state power until after the passage of the Fourteenth
Amendment. See Note, The Public Use Limitation on Eminent Domain:
An Advance Requiem, 58 Yale L. J. 599, 599–600, and
nn. 3–4 (1949); Barron ex rel. Tiernan v. Mayor
of Baltimore, 7 Pet. 243, 250–251 (1833) (holding the Takings
Clause inapplicable to the States of its own force). Nevertheless,
several early state constitutions at the time of the founding
likewise limited the power of eminent domain to “public uses.” See
Sales 367–369, and n. 137 (emphasis deleted). Their practices
therefore shed light on the original meaning of the same words
contained in the Public Use Clause.

															   States employed the eminent
domain power to provide quintessentially public goods, 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 eminent domain power was sparse at the time of the
founding, many States did have so-called Mill Acts, which
authorized the owners of grist mills operated by water power to
flood upstream lands with the payment of compensation to the
upstream landowner. See, e.g., id. , §178, at
245–246; Head v. Amoskeag Mfg. Co., 113 U. S. 9 , 16–19, and n.
(1885). Those early grist mills “were regulated by law and
compelled to serve the public for a stipulated toll and in regular
order,” and therefore were actually used by the public. Lewis §178,
at 246, and n. 3; see also Head , supra , at
18–19. They were common carriers—quasi-public entities. These were
“public uses” in the fullest sense of the word, because the public
could legally use and benefit from them equally. See Public Use
Limitations 903 (common-carrier status traditionally afforded to
“private beneficiaries of a state franchise or another form of
state monopoly, or to companies that operated in conditions of
natural monopoly”). To be sure, some early state
legislatures tested the limits of their state-law eminent domain
power. Some States enacted statutes allowing the taking of property
for the purpose of building private roads. See Lewis §167, at 230.
These statutes were mixed; some required the private landowner 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 grant rights to private
manufacturing plants, in addition to grist mills that had
common-carrier duties. See, e.g., M. Horwitz, The
Transformation of American Law 1780–1860, pp. 51–52
(1977). These early uses of the eminent
domain power are often cited as evidence for the broad “public
purpose” interpretation of the Public Use Clause, see, e.g., ante , at 8, n. 8 (majority opinion);
Brief for Respondents 30; Brief for American Planning Assn.
et al. as Amici Curiae at 6–7, but in fact the
constitutionality of these exercises of eminent domain power under
state public use restrictions was a hotly contested question in
state courts throughout the 19th and into the 20th century. Some
courts construed those clauses to authorize takings for public
purposes, but others adhered to the natural meaning of “public
use.”[ Footnote 2 ] As noted
above, the earliest Mill Acts were applied to entities with duties
to remain open to the public, and their later extension is not
deeply probative of whether that subsequent practice is consistent
with the original meaning of the Public Use Clause. See McIntyre v. Ohio Elections Comm’n, 514 U. S. 334 , 370
(1995) (Thomas, J., concurring in judgment). At the time of the
founding, “[b]usiness corporations were only beginning to upset the
old corporate model, in which the raison d’ętre of
chartered associations was their service to the public,” Horwitz, supra , at 49–50, so it was natural to those who framed the
first Public Use Clauses to think of mills as inherently public
entities. The disagreement among state courts, and state
legislatures’ attempts to circumvent public use limits on their
eminent domain power, cannot obscure that the Public Use Clause is
most naturally read to authorize takings for public use only if the
government or the public actually uses the taken
property. III Our current Public
Use Clause jurisprudence, as the Court notes, has rejected this
natural reading of the Clause. Ante , at 8–10. The Court
adopted its modern reading blindly, with little discussion of the
Clause’s history and original meaning, in two distinct lines of
cases: first, in cases adopting the “public purpose” interpretation
of the Clause, and second, in cases deferring to legislatures’
judgments regarding what constitutes a valid public purpose. Those
questionable cases converged in the boundlessly broad and
deferential conception of “public use” adopted by this Court in Berman v. Parker, 348 U. S. 26 (1954), and Hawaii
Housing Authority v. Midkiff, 467
U. S. 229 (1984), cases that take center stage in the Court’s
opinion. See ante , 10–12. The weakness of those two lines
of cases, and consequently Berman and Midkiff ,
fatally undermines the doctrinal foundations of the Court’s
decision. Today’s questionable application of these cases is
further proof that the “public purpose” standard is not susceptible
of principled application. This Court’s reliance by rote on this
standard is ill advised and should be reconsidered. A As the Court notes,
the “public purpose” interpretation of the Public Use Clause stems
from Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112 ,
161–162 (1896). Ante , at 11. The issue in Bradley was whether a condemnation for purposes of constructing an
irrigation ditch was for a public use. 164 U. S., at 161. This was
a public use, Justice Peckham declared for the Court, because “[t]o
irrigate and thus to bring into possible cultivation these large
masses of otherwise worthless lands would seem to be a public
purpose and a matter of public interest, not confined to
landowners, or even to any one section of the State.” Ibid . That broad statement was dictum, for the law under
review also provided that “[a]ll landowners in the district have
the right to a proportionate share of the water.” Id. , at
162. Thus, the “public” did have the right to use the irrigation
ditch because all similarly situated members of the public—those
who owned lands irrigated by the ditch–had a right to use it. The
Court cited no authority for its dictum, and did not discuss either
the Public Use Clause’s original meaning or the numerous
authorities that had adopted the “actual use” test (though it at
least acknowledged the conflict of authority in state courts, see id. , at 158; supra , at 9, and n. 2). Instead, the
Court reasoned that “[t]he use must be regarded as a public use, or
else it would seem to follow that no general scheme of irrigation
can be formed or carried into effect.” Bradley , supra , at 160–161. This is no statement of constitutional
principle: Whatever the utility of irrigation districts or the
merits of the Court’s view that another rule would be “impractical
given the diverse and always evolving needs of society,” ante , at 8, the Constitution does not embody those policy
preferences any more than it “enact[s] Mr. Herbert Spencer’s Social
Statics.” Lochner v. New York, 198 U. S. 45 , 75 (1905)
(Holmes, J., dissenting); but see id. , at 58–62 (Peckham,
J., for the Court). This Court’s cases
followed Bradley ’s test with little analysis. In Clark v. Nash, 198 U. S. 361 (1905)
(Peckham, J., for the Court), this Court relied on little more than
a citation to Bradley in upholding another condemnation
for the purpose of laying an irrigation ditch. 198 U. S., at
369–370. As in Bradley , use of the “public purpose” test
was unnecessary to the result the Court reached. The government
condemned the irrigation ditch for the purpose of ensuring access
to water in which “[o]ther land owners adjoining the defendant in
error … might share,” 198 U. S., at 370, and therefore Clark also involved a condemnation for the purpose of
ensuring access to a resource to which similarly situated members
of the public had a legal right of access. Likewise, in Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527 (1906), the Court upheld a condemnation establishing an aerial
right-of-way for a bucket line operated by a mining company,
relying on little more than Clark , see Strickley,
supra, at 531. This case, too, could have been disposed of on
the narrower ground that “the plaintiff [was] a carrier for itself
and others,” 200 U. S., at 531–532, and therefore that the bucket
line was legally open to the public. Instead, the Court
unnecessarily rested its decision on the “inadequacy of use by the
general public as a universal test.” Id. , at 531. This
Court’s cases quickly incorporated the public purpose standard set
forth in Clark and Strickley by barren citation.
See, e.g., Rindge Co. v. County of Los
Angeles, 262 U.
S. 700 , 707 (1923); Block v. Hirsh, 256 U. S. 135 , 155
(1921); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U. S. 30 , 32 (1916); O’Neill v. Leamer, 239 U. S. 244 , 253
(1915). B A second line of this
Court’s cases also deviated from the Public Use Clause’s original
meaning by allowing legislatures to define the scope of valid
“public uses.” United States v. Gettysburg Electric R.
Co., 160 U. S.
668 (1896), involved the question whether Congress’ decision to
condemn certain private land for the purpose of building
battlefield memorials at Gettysburg, Pennsylvania, was for a public
use. Id. , at 679–680. Since the Federal Government was to
use the lands in question, id. , at 682, there is no doubt
that it was a public use under any reasonable standard.
Nonetheless, the Court, speaking through Justice Peckham, declared
that “when the legislature has declared the use or purpose to be a
public one, its judgment will be respected by the courts, unless
the use be palpably without reasonable foundation.” Id. ,
at 680. As it had with the “public purpose” dictum in Bradley , supra , the Court quickly incorporated
this dictum into its Public Use Clause cases with little
discussion. See, e.g., United States ex rel. TVA v. Welch, 327 U. S. 546 , 552
(1946); Old Dominion Land Co. v. United States, 269 U. S. 55 , 66
(1925). There is no
justification, however, for affording almost insurmountable
deference to legislative conclusions that a use serves a “public
use.” To begin with, a court owes no deference to a legislature’s
judgment concerning the quintessentially legal question of whether
the government owns, or the public has a legal right to use, the
taken property. Even under the “public purpose” interpretation,
moreover, it is most implausible that the Framers intended to defer
to legislatures as to what satisfies the Public Use Clause,
uniquely among all the express provisions of the Bill of Rights. We
would not defer to a legislature’s determination of the various
circumstances that establish, for example, when a search of a home
would be reasonable, see, e.g., Payton v. New
York, 445 U. S.
573 , 589–590 (1980), or when a convicted double-murderer may be
shackled during a sentencing proceeding without on-the-record
findings, see Deck v. Missouri, 544 U. S. ___
(2005), or when state law creates a property interest protected by
the Due Process Clause, see, e.g., Castle Rock v. Gonzales, post, at __; Board of Regents of State
Colleges v. Roth, 408 U. S. 564 , 576
(1972); Goldberg v. Kelly, 397 U. S. 254 , 262–263
(1970). Still worse, it is backwards to
adopt a searching standard of constitutional review for
nontraditional property interests, such as welfare benefits, see, e.g. , Goldberg , supra , while deferring
to the legislature’s determination as to what constitutes a public
use when it exercises the power of eminent domain, and thereby
invades individuals’ traditional rights in real property. The Court
has elsewhere recognized “the overriding respect for the sanctity
of the home that has been embedded in our traditions since the
origins of the Republic,” Payton , supra , at 601,
when the issue is only whether the government may search a home.
Yet today the Court tells us that we are not to “second-guess the
City’s considered judgments,” ante , at 18, when the issue
is, instead, whether the government may take the infinitely more
intrusive step of tearing down petitioners’ homes. Something has
gone seriously awry with this Court’s interpretation of the
Constitution. Though citizens are safe from the government in their
homes, the homes themselves are not. Once one accepts, as the Court
at least nominally does, ante , at 6, that the Public Use
Clause is a limit on the eminent domain power of the Federal
Government and the States, there is no justification for the almost
complete deference it grants to legislatures as to what satisfies
it. C These two misguided
lines of precedent converged in Berman v. Parker, 348 U. S. 26 (1954), and Hawaii
Housing Authority v. Midkiff, 467
U. S. 229 (1984). Relying on those lines of cases, the Court in Berman and Midkiff upheld condemnations for the
purposes of slum clearance and land redistribution, respectively.
“Subject to specific constitutional limitations,” Berman proclaimed, “when the legislature has spoken, the public interest
has been declared in terms well-nigh conclusive. In such cases the
legislature, not the judiciary, is the main guardian of the public
needs to be served by social legislation.” 348 U. S., at 32. That
reasoning was question begging, since the question to be decided
was whether the “specific constitutional limitation” of the Public
Use Clause prevented the taking of the appellant’s (concededly
“nonblighted”) department store. Id. , at 31, 34. Berman also appeared to reason that any exercise by
Congress of an enumerated power (in this case, its plenary power
over the District of Columbia) was per se a “public use”
under the Fifth Amendment. Id. , at 33. But the very point
of the Public Use Clause is to limit that power. See supra , at 3–4. More fundamentally, Berman and Midkiff erred by equating the eminent
domain power with the police power of States. See Midkiff, 467 U. S., at 240 (“The ‘public use’ requirement is … coterminous
with the scope of a sovereign’s police powers”); Berman, 348 U. S., at 32. Traditional uses of that regulatory power, such
as the power to abate a nuisance, required no compensation
whatsoever, see Mugler v. Kansas, 123 U. S. 623 , 668–669
(1887), in sharp contrast to the takings power, which has always
required compensation, see supra , at 3, and n. 1. The
question whether the State can take property using the power of
eminent domain is therefore distinct from the question whether it
can regulate property pursuant to the police power. See, e.g., Lucas v. South Carolina Coastal
Council, 505 U. S. 1003 , 1014 (1992); Mugler , supra , at 668–669. In Berman ,
for example, if the slums at issue were truly “blighted,” then
state nuisance law, see, e.g., supra , at 5–6; Lucas, supra , at 1029, not the power of eminent domain,
would provide the appropriate remedy. To construe the Public Use
Clause to overlap with the States’ police power conflates these two
categories.[ Footnote
3 ] The “public purpose” test applied
by Berman and Midkiff also cannot be applied in
principled manner. “When we depart from the natural import of the
term ‘public use,’ and substitute for the simple idea of a public
possession and occupation, that of public utility, public interest,
common benefit, general advantage or convenience … we are afloat
without any certain principle to guide us.” Bloodgood v. Mohawk & Hudson R. Co. , 18 Wend. 9, 60–61 (NY
1837) (opinion of Tracy, Sen.). Once one permits takings for public
purposes in addition to public uses, no coherent principle limits
what could constitute a valid public use–at least, none beyond
Justice O’Connor’s (entirely proper) appeal to the text of the
Constitution itself. See ante , at 1–2, 8–13 (dissenting
opinion). I share the Court’s skepticism about a public use
standard that requires courts to second-guess the policy wisdom of
public works projects. Ante , at 16–19. The “public
purpose” standard this Court has adopted, however, demands the use
of such judgment, for the Court concedes that the Public Use Clause
would forbid a purely private taking. Ante , at 7–8. It is
difficult to imagine how a court could find that a taking was
purely private except by determining that the taking did not, in
fact, rationally advance the public interest. Cf. ante , at
9–10 (O’Connor, J., dissenting) (noting the complicated inquiry the
Court’s test requires). The Court is therefore wrong to criticize
the “actual use” test as “difficult to administer.” Ante ,
at 8. It is far easier to analyze whether the government owns or
the public has a legal right to use the taken property than to ask
whether the taking has a “purely private purpose”–unless the Court
means to eliminate public use scrutiny of takings entirely. Ante , at 7–8, 16–17. Obliterating a provision of the
Constitution, of course, guarantees that it will not be
misapplied. For all these reasons, I would
revisit our Public Use Clause cases and consider returning to the
original meaning of the Public Use Clause: that the government may
take property only if it actually uses or gives the public a legal
right to use the property. IV The consequences of
today’s decision are not difficult to predict, and promise to be
harmful. So-called “urban renewal” programs provide some
compensation for the properties they take, but no compensation is
possible for the subjective value of these lands to the individuals
displaced and the indignity inflicted by uprooting them from their
homes. Allowing the government to take property solely for public
purposes is bad enough, but extending the concept of public purpose
to encompass any economically beneficial goal guarantees that these
losses will fall disproportionately on poor communities. Those
communities are not only systematically less likely to put their
lands to the highest and best social use, but are also the least
politically powerful. If ever there were justification for
intrusive judicial review of constitutional provisions that protect
“discrete and insular minorities,” United States v. Carolene Products Co., 304 U. S. 144 , 152, n. 4
(1938), surely that principle would apply with great force to the
powerless groups and individuals the Public Use Clause protects.
The deferential standard this Court has adopted for the Public Use
Clause is therefore deeply perverse. It encourages “those citizens
with dis- proportionate influence and power in the political pro-
cess, including large corporations and development firms” to
victimize the weak. Ante , at 11 (O’Connor, J.,
dissenting). Those incentives have
made the legacy of this Court’s “public purpose” test an unhappy
one. In the 1950’s, no doubt emboldened in part by the expansive
understanding of “public use” this Court adopted in Berman , cities “rushed to draw plans” for downtown
development. B. Frieden & L. Sagalayn, Downtown, Inc. How
America Rebuilds Cities 17 (1989). “Of all the families displaced
by urban renewal from 1949 through 1963, 63 percent of those whose
race was known were nonwhite, and of these families, 56 percent of
nonwhites and 38 percent of whites had incomes low enough to
qualify for public housing, which, however, was seldom available to
them.” Id. , at 28. Public works projects in the 1950’s and
1960’s destroyed predominantly minority communities in St. Paul,
Minnesota, and Baltimore, Maryland. Id. , at 28–29. In
1981, urban planners in Detroit, Michigan, uprooted the largely
“lower-income and elderly” Poletown neighborhood for the benefit of
the General Motors Corporation. J. Wylie, Poletown: Community
Betrayed 58 (1989). Urban renewal projects have long been
associated with the displacement of blacks; “[i]n cities across the
country, urban renewal came to be known as ‘Negro removal.’ ”
Pritchett, The “Public Menace” of Blight: Urban Renewal and the
Private Uses of Eminent Domain, 21 Yale L. & Pol’y Rev. 1, 47
(2003). Over 97 percent of the individuals forcibly removed from
their homes by the “slum-clearance” project upheld by this Court in Berman were black. 348 U. S., at 30. Regrettably, the
predictable consequence of the Court’s decision will be to
exacerbate these effects. *** The Court relies
almost exclusively on this Court’s prior cases to derive today’s
far-reaching, and dangerous, result. See ante , at 8–12.
But the principles this Court should employ to dispose of this case
are found in the Public Use Clause itself, not in Justice Peckham’s
high opinion of reclamation laws, see supra , at 11. When
faced with a clash of constitutional principle and a line of
unreasoned cases wholly divorced from the text, history, and
structure of our founding document, we should not hesitate to
resolve the tension in favor of the Constitution’s original
meaning. For the reasons I have given, and for the reasons given in
Justice O’Connor’s dissent, the conflict of principle raised by
this boundless use of the eminent domain power should be resolved
in petitioners’ favor. I would reverse the judgment of the
Connecticut Supreme Court. Footnote 1 Some state constitutions at the
time of the founding lacked just compensation clauses and took
property even without providing compensation. See Lucas v. South Carolina Coastal Council, 505 U. S. 1003 , 1056–1057 (1992)
(Blackmun, J., dissenting). The Framers of the Fifth Amendment
apparently disagreed, for they expressly prohibited uncompensated
takings, and the Fifth Amendment was not incorporated against the
States until much later. See id. , at 1028,
n. 15. Footnote 2 Compare ante , at 8, and
n. 8 (majority opinion) (noting that some state courts upheld
the validity of applying the Mill Acts to private purposes and
arguing that the “ ‘use by the public’ test” “eroded over
time”), with, e.g. , Ryerson v. Brown , 35
Mich. 333, 338–339 (1877) (holding it “essential” to the
constitutionality of a Mill Act “that the statute should require
the use to be public in fact; in other words, that it should
contain provisions entitling the public to accommodations”); Gaylord 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 purely private 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 be open
to public for them to constitute public use); Harding v. Goodlett , 3 Yerg. 41, 53 (1832); Jacobs v. Clearview Water Supply Co. , 220 Pa. 388, 393–395, 69 A.
870, 872 (1908) (endorsing actual public use standard); Minnesota Canal & Power Co. v. Koochiching
Co. , 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 (Ct. App. 1907) (same); Note,
Public Use in Eminent Domain, 21 N. Y. U. L. Q. Rev. 285, 286,
and n. 11 (1946) (calling the actual public use standard the
“majority view” and citing other cases). Footnote 3 Some States also promoted the
alienability of property by abolishing the feudal “quit rent”
system, i.e. , long-term leases under which the proprietor
reserved to himself the right to perpetual payment of rents from
his tenant. See Vance, The Quest for Tenure in the United States,
33 Yale L. J. 248, 256–257, 260–263 (1923). In Hawaii
Housing Authority v. Midkiff, 467
U. S. 229 (1984), the Court cited those state policies favoring
the alienability of land as evidence that the government’s eminent
domain power was similarly expansive, see id. , at 241–242,
and n. 5. But they were uses of the States’ regulatory power,
not the takings power, and therefore were irrelevant to the issue
in Midkiff . This mismatch underscores the error of
conflating a State’s regulatory power with its taking
power.

Summary: The Supreme Court ruled in favor of the City of New London's use of eminent domain to acquire land for economic development, despite opposition from some property owners. This decision was based on the expected benefits of the development plan for the economically distressed city.