The Supreme Court's controversial 5-4 ruling in Kelo v. City of New London (2005), held that private "economic development" is enough to satisfy the Fifth Amendment requirement that the government can only condemn property for a "public use." In so doing, it rekindled a longstanding debate over whether takings that transfer property to private parties violate the public use requirement. Harvard law Professor Maureen "Molly" Brady - one of the nation's leading property and takings scholars - has uncovered additional new evidence on this topic. And it counts against the decision reached in Kelo.
In an insightful post at the Brennan Center State Court Report, and an article for the recent Yale Journal on Regulation symposium on the 20th anniversary of Kelo (which I co-edited), Brady assesses debates over public use in late-nineteenth century state constitutional conventions, mostly in western states. She finds that several western states included specific provisions in their new state constitutions authorizing the use of eminent domain for some private purposes, such as drainage and mining. But, importantly, they did so explicitly, specifically outlining these categories as exceptions to the general requirement that takings must be for a "public use."
