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The Summary of Argument and an excerpt (in brackets) from the Claremont Institute's brief in the Kelo v. City of New London case, coauthored by Eric Claeys of St. Louis University School of Law and John Eastman, Director of the Institute's Center for Constitutional Jurisprudence:
This Court should correct the "broad," "purposive," and "deferential" reading of the Public Use Clause propounded by the court below, and restore the Clause's original public meaning:
"Public use" requires the public to "use" the property, either by owning it or by controlling how it is used. The alternative, that "public use" means "public usefulness, "purpose," or "advantage," confounds the Constitution's structure, for it makes the term "use" basically repetitive of the term "necessary" in the Necessary and Proper Clause.
[Congress gets whatever eminent domain power it has from the Necessary and Proper Clause, not the Fifth Amendment…. The Fifth Amendment's Takings Clause was clearly meant as a limitation on the eminent domain power, with two components: The taking had to be for "public use," and "just compensation" was required."]
The relevant evidence of original meaning confirms what text and structure already make clear.The term "public use" marks off a principled distinction: Government violates the terms of the social compact when it redistributes one private owner's land to another.
By contrast, government stay within the social compact if it takes property in such a manner that citizens enjoy the taken property on the same terms that partners enjoy property acquired by their partnership.
This Court can enforce the Public Use Clause's original meaning by applying a simple test. Government takes property for a public use if it retains ownership of the property, or if it assigns the property to a private
party subject to common carrier duties of public access. But if the government transfers property to a private party not subject to common carrier duties, the taking is for a private use and violates the Public Use Clause.
To restore the original meaning of the Public Use Clause, this Court should also limit excessive language from Berman v. Parker, 348 U.S. 26 (1954), which suggested that governments may circumvent the Public Use Clause merely by citing the police power. Police-power analysis is relevant to the question whether a taking has occurred, not to whether that taking is for public use. The latter question should be judged only by whether the government owns the property taken or controls how it is used.
The full text of the brief may be found here.
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