Eminent domain, "public use," and the conundrum of original intent

Natural Resources Journal

Volumn 36, Issue 1, 1996, Pages 59-85

  Melton Jr , Buckner F ^a  

^a Elon College ^*

Author keywords

[No Author keywords available]

Indexed keywords

EMINENT DOMAIN; LEGISLATIVE CONCEPT; PLANNING LEGISLATION; PUBLIC USE; RESOURCES MANAGEMENT;

USA;

EID: 0030439941     PISSN: 00280739     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (207)

1. John Milton, Paradise Lost, bk. 1, in 2 THE WORKS OF JOHN MILTON 17 (1931).
2. HENRY D. THOREAU, WALDEN 127 (Charles E. Merrill ed., 1969).
3. LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 182 (2d ed. 1985).
4. See infra notes 161-72 and accompanying text.
5. See CLEMENT EATON, THE GROWTH OF SOUTHERN CIVILIZATION 221-22 (1961).
6. Brewer v. Bowman, 9 Ga. 37, 37-38 (1850).
7. See EATON, supra note 5, at 98 (observing that "the vast majority of Southern families lived on small farms[,]" although "the plantation type of life set the tone of Southern society").
8. Plantations generally grew cash crops, which, of course, necessitated commerce and transportation of the goods. EATON, supra note 5, at 99-100. Many planters, moreover, "did not regard it beneath their dignity to engage in money-making enterprises other than farming. Planters operated ferries, grist mills, lumber mills, stores, and contracted to dig canals and construct roadbeds of railroads with their slave gangs." Id. at 222.
9. Brewer, 9 Ga. at 37-38.
10. Id. at 38.
11. Id.
12. Act of Dec. 20, 1834, 1834 Ga. Laws 199-200. The statute reads in part: [T]he Inferior Courts of the several counties in this State are hereby authorized and empowered, on application (whenever in their opinion it shall seem reasonable and just), to grant settlement-roads or private ways to individuals to go from and return to his, her, or their farm or place of residence. Id. § 1, at 199.
13. Brewer, 9 Ga. at 39. The restrictions of the Fifth Amendment's Takings Clause did not, as of 1850, apply to state governments. See Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 250-51 (1833) ("[T]he provision in the fifth amendment . . . declaring that private property shall not be taken for public use without just compensation . . . is not applicable to the legislation of the states"). The Brewer court found, however, that natural, or "fundamental," law accomplished the same end regarding state law as the federal Takings Clause did respecting federal law. See Brewer, 9 Ga. at 39. See also U.S. CONST. amend. V ("nor shall private property be taken for public use, without just compensation").
14. Brewer, 9 Ga. at 39.
15. Id. 39-41 (dictum).
16. Id. at 39 (dictum).
17. Id. at 40 (dictum).
18. Id.
19. Id.
20. See supra note 8.
21. Brewer, 9 Ga. at 40 (dictum). The court obviously made these statements to assure the legislature that a replacement for the 1834 act would be acceptable as long as it provided compensation. See id. at 41 (dictum).
22. One could argue that Bowman needed access across Brewer's land in order to travel to court and enjoin Brewer from blocking Bowman's access across Brewer's land. Despite its circularity. Justice Warner may have found even this argument sufficient, given his broad view of the meaning of "public use." See id. at 40-41 (dictum).
23. See Lawrence Berger, The Public Use Requirement in Eminent Domain, 57 OR. L. REV. 203, 205 (1978); see also infra note 28 and accompanying text (defining these terms).
24. See, e.g., Bloodgood v. Mohawk & Hudson R.R., 18 Wend. 9, 31 Am. Dec. 313 (N.Y. 1837); see also infra notes 161-172 and accompanying text (discussing Bloodgood).
25. Brewer, 9 Ga. at 41 (dictum) (citing Taylor v. Porter, 4 Hill 140 (N.Y. 1843)).
26. See FRIEDMAN, supra note 3, at 182.
27. Comment, The Public Use Limitation on Eminent Domain: An Advance Requiem, 58 YALE L.J. 599, 605-06 (1949) ("By the beginning of the [twentieth] century, there had developed a massive body of [public use] case law, irreconcilable in its inconsistency, confusing in its detail and defiant of all attempts at classification").
28. Berger, supra note 23, at 205 (footnotes omitted).
29. See supra note 27 and accompanying text.
30. 348 U.S. 26 (1954).
31. Id. at 33-34. Berman involved the condemnation, by the District of Columbia Redevelopment Land Agency, of the plaintiffs' department store and residential property as part of a redevelopment project. Id. at 28-31. The agency had statutory authority to sell or lease portions of condemned property to private parties in order to attain its redevelopment goals. Id. at 30. On appeal, the plaintiffs argued, inter alia, that the agency's condemnation of their property violated the public use requirement. Id. at 31. In affirming a finding in favor of the agency, the Supreme Court adopted a deferential, very broad definition of public use. "Subject to specific constitutional limitations," wrote Justice Douglas for the Court, "when the legislature has spoken, the public interest has been declared and is well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of public needs to be served by social legislation . . . ." Id. at 32. Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established. Id. at 33.
32. 467 U.S. 229 (1984).
33. In Midkiff, the Hawaii state legislature had acted to break up the ownership of private land in the state, a very high percentage of which was in the hands of fewer than 100 owners. Id. at 232. The legislature provided for condemnation of large residential tracts of land that the landowners were leasing to their tenants, and for subsequent transfer of the title, for a price, to those tenants, at the tenants' behest. Id. at 233. Perhaps inevitably, some of the landowners sought to enjoin the law's enforcement and asked the federal courts to declare it unconstitutional. Id. at 234-35. Although the Court of Appeals for the Ninth Circuit found a public use violation, the Supreme Court reversed. Id. at 245. In Midkiff the Court went even further than it had in Berman. In an opinion by Justice O'Connor, the Court stressed the applicability of a "rational relationship" test in public use cases. To be sure, the 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.' . . . But where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause. Id. at 241 (quoting Thompson v. Consol. Gas Corp., 300 U.S. 55, 80 (1937)).
34. See Midkiff, 467 U.S. at 240-43; see also Alois V. Gross, Annotation, When is Taking of Property for "Public Use" So as to be Permissible Under Federal Constitution if Just Compensation is Provided - Supreme Court Cases, 81 L. Ed. 2d 931 (1986) (discussing the Supreme Court's treatment of the public use issue).
35. For an earlier compilation of federal and state cases discussing the public use/public benefit distinction, see Annotation, Public Benefit or Convenience as Distinguished from Use by the Public as Ground for the Exercise of the Power of Eminent Domain, 54 A.L.R. 7 (1928). A celebrated, and extreme, case in which the judiciary effectively rendered the public use requirement nugatory is Poletown Neighborhood Council v. City of Detroit, 405 N.W.2d 455 (Mich. 1981). In Poletown the Michigan Supreme Court refused to uphold residential landowners' "public use" objections to Detroit's plan to transfer title from the owners to General Motors Corporation, so that the latter could construct a new factory. Id. at 457. Here the court focused not on the identity of the recipient of the property, but instead the economic benefit, to the community. Interpreting the Michigan Constitution's Public Use Clause, the court observed that eminent domain would "accomplish the essential public purposes of alleviating unemployment and revitalizing the economic base of the community. The benefit to a private interest is merely incidental." Id. at 459. Cf. Midkiff, 467 U.S. at 241-42 (in which the Supreme Court also emphasized the economic benefits that would flow from the property redistribution).
36. In recent years, however, courts have still occasionally found purely private purposes in some takings and invalidated the condemnations on that ground. See, e.g., Steen v. Columbo, 722 S.W.2d 648,649 (Mo. Ct. App. 1987). Recent scholarship, however, has raised the argument that the framers intended takings for private use to be not only permissible, but permissible without compensation. See Jed Rubinfeld, Usings, 102 YALE L.J. 1077, 1079, 1120 (1993).
37. See Berger, supra note 23, at 205.
38. See infra notes 56-151 and accompanying text.
39. See infra notes 56-151 and accompanying text.
40. See STANLEY FISH, IS THERE A TEXT IN THIS CLASS? THE AUTHORITY OF INTERPRETIVE COMMUNITIES 14 (1980).
41. See William M. Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 818-25 (1995) (discussing the republican/liberal dichotomy as it relates to the issue of eminent domain).
42. See HENRY F. MAY, THE ENLIGHTENMENT IN AMERICA xi-xii (1976).
43. See, e.g., Continental Can v. Chicago Truck Drivers, 916 F.2d 1154, 1157 (7th Cir. 1990) (Easterbrook, J.) (decrying an intentionalist approach within the context of federal statutory interpretation); FISH, supra note 38, at 1-21 (questioning the existence of an originalist meaning). For a discussion of scholars' limited use of original intent within the context of the Takings Clause, see Treanor, supra note 39, at 782, 811-12. See also RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 29 (1985) ("Historical arguments have played virtually no role in the actual interpretation of the [Takings C]lause").
44. See EPSTEIN at 29.
45. See, e.g., Church of the Holy Trinity v. United States, 143 U.S. 457, 458-65 (1892) (applying an intent-based approach in a statutory context). "It is a familiar rule," wrote Justice Brewer for the Court, "that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers." Id. at 459.
46. See, e.g., MAX FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (1911);
47. THE DOCUMENTARY HISTORY OF THE RATIRCATION OF THE CONSTITUTION (John P. Kaminski & Gaspare J. Saladino eds., 19-) [hereinafter DOCUMENTARY HISTORY].
48. The volumes of the DOCUMENTARY HISTORY that will cover the drafting and ratification of the Bill of Rights have yet to be published. Such problems of source availability have led to the observation that "[s]cholars have generally focused more on philosophy and economics than they have on history, partly because of the paucity of historical evidence of the framers' intent." Treanor, supra note 39, at 811 (footnote omitted).
49. See FORREST MCDONALD, NOVUS ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE CONSTITUTION 187-88 (1985) (discussing the intellectual traditions of the framers' generation);
50. see generally GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787 (1969) (discussing the same topic).
51. See MCDONALD, supra note 46, at 187-88 (discussing British and other intellectual influences upon certain framers); WOOD, supra note 46, at 10-14 (describing Americans' appreciation for the English Constitution and political tradition during the Revolution); id. at 575-76 (illustrating this continued influence upon individuals such as John Adams during the constitutional period).
52. Some would find this approach preferable to a study that focused upon the framers themselves. See FISH, supra note 38, at 14; David B. Anders, Justices Harlan and Black Revisited: The Emerging Dispute Between Justice O'Connor and Justice Scalia Over Unenumerated Fundamental Rights, 61 FORDHAM L. REV. 895, 904-05 (1993).
53. Such a self-imposed imprisonment could well lead to what one scholar has recently denounced as "law office history," in which researchers "notoriously pick and choose facts and incidents ripped out of context that serve their purposes." Martin S. Flaherty, History "Lite" in Modern American Constitutionalism, 95 COLUM. L. REV. 523, 554 (1995) .
54. Flaherty objects to researchers' failure to immerse themselves completely in both the mindset of an historical era and in all of the materials that it has to offer, relying instead only upon salient, well-known documents. Id. at 553-54. While such a critique is often well warranted, one can nevertheless perceive in Flaherty's approach to constitutional history a tendency towards Historical Idealism that, taken to its logical conclusion, could preclude anyone from truly comprehending an historical epoch or event to which he himself was not party. See MARK T. GILDERHUS, HISTORY AND HISTORIANS 73 (2d ed. 1992) (discussing Benedetto Croce's argument that, in Gilderhus's words, "[f]or the past to take on vitality and meaning, historians [must] make it come alive with relevance by rethinking it in their own minds.")
55. See also R.G. COLLINGWOOD, THE IDEA OF HISTORY (1946) (constituting the most famous statement of Historical Idealism). Such a view would go far to deny the ability of historical episodes to enlighten us, in any scientific sense, about present legal (or other) developments. If each event is unique, or consists of myriad variables too diverse and complex to observe or quantify, or results from factors of which no empirical evidence even survives, then any attempt to use history to "explain" the present in positivist terms is probably doomed.
56. This present article, however, does not purport to discuss at length this perennial philosophical debate. The author here merely expresses his hope that, in examining what he believes to be some representative bits of evidence of the history of public use, he has not done serious damage to the fabric of that history, and has thus avoided becoming a target of Flaherty's criticism. For other perspectives on this debate within the context of constitutional history, including the history of property rights, see Richard A. Epstein, History Lean: The Reconciliation of Private Property and Representative Government, 95 COLUM. L. REV. 591 (1995);
57. Cass R. Sunstein, The Idea of a Useable Past, 95 COLUM. L. REV. 601 (1995).
58. See Comment, supra note 27, at 599.
59. 91 U.S. 367 (1876). Kohl involved the federal government's condemnation of a parcel of land in Cincinnati in order to build a post office. Id. at 368. The Court's unequivocal opinion quickly killed any doubts about the viability of a federal power of eminent domain. See id. at 371-75.
60. See Comment, supra note 27, at 599-600 n.4.
61. See infra notes 112-113 and accompanying text.
62. 12 THE PAPERS OF JAMES MADISON 58 (Robert A. Rutland & Charles F. Hobson eds., 1979) [hereinafter MADISON PAPERS].
63. William B. Stoebuck, A General Theory of Eminent Domain, 47 WASH. L. REV. 553, 555 (1972).
64. Id. at 553; see 1 Kings 21:2 (King James) ("And [King] Ahab spake unto Na'both, saying. Give me thy vineyard, that I may have it for a garden of herbs, because it is near to my house: and I will give thee for it a better vineyard than it; or, if it seem good to thee, I will give thee the worth of it in money.") While including an offer of just (apparently, at least) compensation, Ahab's attempted condemnation may arguably have been for a private purpose, since the vineyard apparently was to have been devoted to Ahab's own use. Id. The answer to this issue would most likely turn upon whether the kings of ancient Israel could rightly say, in the words of Napoleon, "L'état c'est moi." See JOHN BARTLETT, FAMILIAR QUOTATIONS 399 & n.2 (13th ed. 1955). This question the author would not presume to answer.
65. Stoebuck, supra note 55, at 573.
66. 1 WILLIAM BLACKSTONE, COMMENTARIES *139. Blackstone also penned a sentiment that would have been (and, given the pervasiveness and influence of his volumes, perhaps was) of great interest to the Brewer court and litigants: "If a new road, for instance, 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." Id. Blackstone did, however, qualify these pronouncements to a degree. While admitting that the legislature could "compel the individual" to part with his property, Blackstone characterized this event not so much as an invasion of property rights as a forced exchange, in which the former owner received "a full indemnification and equivalent for the injury thereby sustained . . . . All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price." Id. The owner, in other words, retained the full value of his property, though not the thing itself. Nevertheless, that Blackstone would proclaim the utter sanctity of property even in the face of Parliament's undeniable exercise of eminent domain reveals a certain depth of feeling upon the subject.
67. See Rubinfeld, supra note 34, at 1079 (theorizing that the phrase "public use" actually specifies "which takings of property require compensation", rather than "which takings of property are unconstitutional with or without compensation").
68. See Stoebuck, supra note 55, at 562-66.
69. See supra note 58.
70. MAGNA CARTA OF 1225, ch. 21, in SOURCES OF ENGLISH LEGAL HISTORY 53 (Michael Evans & R. Ian Jack eds., 1984).
71. Stoebuck, supra note 55, at 562-64.
72. See infra note 70 and accompanying text.
73. Stoebuck, supra note 55, at 565.
74. Id. at 564-65.
75. See infra notes 68-78 and accompanying text.
76. Stoebuck, supra note 55, at 559.
77. HUGO GROTIUS, THE RIGHTS OF WAR AND PEACE, bk. 3, at 387-88 (A.C. Campbell trans., 1901).
78. HUGO GROTIUS, THE RIGHTS OF WAR AND PEACE, 387-88 1901. Id. (emphasis in Campbell translation).
79. Cf. 1 JULIUS L. SACKMAN, NICHOLS' THE LAW OF EMINENT DOMAIN 1-15 (rev. 3d. ed. 1994) (quoting a different translation, which reads in part "in which even private persons have a right over the property of others, but for ends of public utility").
80. The entire section reads in the original as follows: VII. I. Disputari et hoc solet quid in res singulorum possint pacis causa statuere qui reges sunt, nee in res subditorum sub eminenti dominio esse civitas, ita ut civitas, aut qui civitas vice fungitur, iis rebus uti, easque etiam perdere et alienare possit, non tantum ex summa necessitate, quae privatis quoque ius aliquod in aliena concedit, sed ob publicam utilitatem, cui privates cedere illi ipsi voluisse censendi sunt qui in civilem coetum coierunt.
81. HUGO GROTIUS, DE IURE BELLI AC PACIS, lib. III, at 653 (A.W. Sijthoff 1919) (emphasis added, footnote omitted).
82. OXFORD LATIN DICTIONARY 2118 (1968).
83. See Rubinfeld, supra note 34, at 1079.
84. GROTIUS, supra note 69, bk. 2, at 92.
85. Id.
86. US. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES: 1993 (1993).
87. See supra notes 16-22 and accompanying text.
88. See Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 36, 54-55 (1964).
89. MASSACHUSETTS BODY OF LIBERTIES § 8 (1641),
90. reprinted in 5 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS 48 (William F. Swindler ed., 1975) [hereinafter SOURCES].
91. See Stoebuck, supra note 55, at 560 n.24.
92. See, e.g., THOMAS BERGIN & PAUL-G. HASKELL, PREFACE TO ESTATES IN LAND AND FUTURE INTERESTS 82 (2d ed. 1984).
93. 4 DICTIONARY OF THE HISTORY OF IDEAS PSYCHOLOGICAL THEORIES IN AMERICAN THOUGHT 18 (1973).
94. See Sax, supra note 78, at 54-56; supra note 78 and accompanying text.
95. Compare, e.g., N.C. CONST. of 1776, Decl. of Rights § XII, reprinted in 7 SOURCES, supra note 79, at 402-03 ("no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, or privileges, . . . or deprived of his life, liberty, or property, but by the law of the land") with MAGNA CARTA of 1225, ch. 29, reprinted in SOURCES OF ENGLISH LEGAL HISTORY, supra note 62, at 54 (using essentially the same language).
96. For an overview of the mill acts and their place in legal history, see MORTON HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1780-1860, at 47-54 (Oxford Univ. Press ed., 1992). A briefer treatment appears in Berger, supra note 23, at 206-07.
97. FRIEDMAN, supra note 3, at 59.
98. "Before Independence," writes one group of scholars, "only one manufacturing establishment in America was using a steam engine . . . . American manufacturers appear to have preferred the waterwheel to the steam engine as the prime [power source] until some time in the middle of the last century." Jeremy Atack et al., The Regional Diffusion and Adoption of the Steam Engine in American Manufacturing, 40 J. ECON. HIST. 281, 281 (1980).
99. Evidence indicates that even as late as 1850, total horsepower production of American waterwheels exceeded that of steam engines. Id. at 282 n.10. One should not neglect, however, the fact that animal sources of power (horses, mules, and oxen) also constituted a prime power source. JONATHAN HUGHES, AMERICAN ECONOMIC HISTORY 144-45 (3d ed. 1989).
100. See infra notes 91-107 and accompanying text.
101. See HUGHES, supra note 87, at 145.
102. For a relatively complete list of mill acts through the late 1800s, see Head v. Amoskeag Mfg. Co., 113 U.S. 9, 17 n.* (1884).1
103. See Act of Sept. 23,1667, act 4 [hereinafter Va. Mill Act of 1667], appearing in 2 LAWS OF VIRGINIA 260 (Waller Hening ed., 1792) [hereinafter LAWS OF VIRGINIA].
104. See Head, 113 U.S. at 17 n.*.
105. See, e.g., Act of June 6, 1719, ch. 15 [hereinafter Md. Mill Act of 1719], appearing in 1 LAWS OF MARYLAND 7(1799) [hereinafter MARYLAND LAWS];
106. Act of Feb. 27, 1796, [hereinafter Mass. Mill Act of 1796], appearing in 2 LAWS OF THE COMMONWEALTH OF MASSACHUSETTS 729 (1800) [hereinafter MASSACHUSETTS LAWS];
107. Act of Feb. 22, 1714, ch. 15 [hereinafter Mass. Mill Act of 1714], appearing in 1 THE ACTS AND RESOLVES, PUBLIC AND PRIVATE, OF MASSACHUSETTS BAY 729 (1869) [hereinafter ACTS OF MASSACHUSETTS];
108. Act of 1758, ch. 5 [hereinafter N.C. Mill Act of 1758], appearing in COMPLETE REVISAL OF ALL THE ACTS OF ASSEMBLY OF THE PROVINCE OF NORTH CAROLINA 219 (1773) [hereinafter NORTH CAROLINA ACTS];
109. Act of 1734, 1738, 1798 [hereinafter R.J. Mill Act], Pub. L. 1798, at 504 (R.I.) [hereinafter R.I. Laws of 1798]; Act of Feb. 1745 [hereinafter Va. Mill Act of 1745], appearing in 5 LAWS OF VIRGINIA, supra note 91, at 359.
110. Va. Mill Act of 1667, supra note 91, at 260-61;
111. N.C. Mill Act of 1758, supra note 93, at 219.
112. Some acts even allowed a prospective miller to appropriate land apparently regardless of whether he already owned any riparian property. Md. Mill Act of 1719, supra note 93.
113. See Mass. Mill Act of 1796, supra note 93, at 729;
114. Mass. Mill Act of 1714, supra note 93, at 730;
115. R.I. Mill Act, supra note 93, at 504-05.
116. See supra note 93.
117. N.C. Mill Act of 1758, supra note 93, at 219;
118. Va. Mill Act of 1745, supra note 93, at 360.
119. See Rubinfeld, supra note 34, at 1079; see also supra note 34 (describing Rubinfeld's thesis).
120. See, MASS. CONST. of 1780, pt. 1, art. X, reprinted in 5 SOURCES, supra note 79, at 94; 100. CONST. of 1776, Bill of Rights, § 6, reprinted in 10 SOURCES, supra note 79, at 48, 49.
121. See supra notes 18-22 and accompanying text.
122. N.C. Mill Act of 1758, supra note 93, at 219-20.
123. Mass. Mill Act of 1714 , supra note 93, at 729.
124. Va. Mill Act of 1667, supra note 91, at 260.
125. Va. Mill Act of 1667, 260. Id.
126. See, e.g., id.
127. Md. Mill Act of 1719, supra note 93.
128. Md. Mill Act of 1719, Id.
129. See supra note 93.
130. See, e.g., Act of Dec. 15, 1865, 1865 Or. Laws 11; see also Head, 113 U.S. at 17 n.* (listing other nineteenth century mill acts).
131. For a digest of the acts that confiscated loyalist property, see CLAUDE H. VAN TYNE, THE LOYALISTS OF THE AMERICAN REVOLUTION 335-41 (1959).
132. WOOD, supra note 46, at 404.
133. See, e.g., DEL. CONST. of 1792, art. I, § 8, reprinted in 2 SOURCES, supra note 79, at 205, 206 ("nor shall any man's property be taken or applied to public use without the consent of his representatives, and without compensation being made."); MASS. CONST. of 1780, pt. 1, art. 10, reprinted in 5 SOURCES, supra note 79, at 94.
134. MASS. CONST. of 1780, pt. 1, art. 10, reprinted in 5 SOURCES, supra note 79, at 94.
135. See Rubinfeld, supra note 34, at 1120.
136. Id.
137. Rubinfeld implicitly uses a plain meaning methodology in his textual analysis. Id.
138. Stoebuck, supra note 55, at 592-93.
139. See supra note 93.
140. See Mass. Mill Act of 1796, supra note 93, at 729; 5 SOURCES, supra note 79, at 13.
141. See Mass. Mill Act of 1796, supra note 93, at 729;
142. Mass. Mill Act of 1714, supra note 93, at 729.
143. See infra notes 122-134 and accompanying text.
144. Essay of Landholder, CONNECTICUT COURANT, Mar. 10, 1788,
145. reprinted in 16 DOCUMENTARY HISTORY, supra note 44, at 367.
146. See Stoebuck, supra note 55, at 585-88.
147. 13 DOCUMENTARY HISTORY, supra note 44, at 561-62.
148. Letter from William Symmes, Jr., to Peter Osgood, Jr., reprinted in 14 DOCUMENTARY HISTORY, supra note 44, at 107, 111.
149. See Stoebuck, supra note 55, at 585-86 (discussing the Lockean tradition in late 1780s American political thought).
150. "What one must stress is that the right to property was an unquestioned assumption of the American Revolutionaries. To assert this is merely to assert that they were eighteenth-century men. But one must go on to say that they did not defend property as an end in itself but rather as one of the bases of republican government." Stanley N. Katz, Thomas Jefferson and the Right to Property in Revolutionary America, 19 J.L. & ECON. 467, 469-70 (1976).
151. See CHARLES S. SYDNOR, AMERICAN REVOLUTIONARIES IN THE MAKING: POLITICAL PRACTICES IN WASHINGTON'S VIRGINIA 109 (1965) [hereinafter SYDNOR, AMERICAN REVOLUTIONARIES];
152. CHARLES S. SYDNOR, GENTLEMEN FREEHOLDERS: POLITICAL PRACTICES IN WASHINGTON'S VIRGINIA 123 (1952) [hereinafter SYDNOR, GENTLEMEN FREEHOLDERS].
153. See SYDNOR, AMERICAN REVOLUTIONARIES, supra note 128, at 15-17;
154. SYDNOR, GENTLEMEN FREEHOLDERS, supra note 128, at 4-6; infra notes 130-34 and accompanying text.
155. See Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810). For an extended account of Fletcher and the self-dealing of the Georgia legislature, see generally C. PETER MAGRATH, YAZOO: LAW AND POLITICS IN THE NEW REPUBLIC: THE CASE OF FLETCHER V. PECK (1966).
156. See infra notes 132-34 and accompanying text.
157. A Federal Republican, A REVIEW OF THE CONSTITUTION, reprinted in 14. DOCUMENTARY HISTORY, supra note 44, at 255, 267-68.
158. Letters from the Federal Farmer to the Republican, reprinted in 14 DOCUMENTARY HISTORY, supra note 44, at 14, 48.
159. PHILADELPHIA INDEPENDENT GAZETTEER, Jan. 2,1798, reprinted in 15 DOCUMENTARY HISTORY, supra note 44, at 234.
160. For a brief history of this episode, see RICHARD B. MORRIS, THE FORGING OF THE UNION, 1781-1789, at 40-42 (1987).
161. Letter from James Madison to George Eve (Jan- 2, 1789), in 11 MADISON PAPERS, supra note 54, at 404-05.
162. Id. Several weeks earlier, Madison had written Thomas Jefferson that he saw no need for a Bill of Rights, since he considered that the Constitution reserved all power that it had not expressly granted. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 11 MADISON PAPERS, supra note, at 295-97. If Madison continued to believe this, and saw the proposal of amendments as a purely political gesture, then the appropriate reading of the Fifth Amendment's public use clause, at least in Madison's view, is probably as a threshold requirement (that is, requiring a public use in order to justify a taking). This interpretation flies in the face of Rubinfeld's thesis that takings for private use are permissible without compensation. See Rubinfeld, supra note 34, at 1079.
163. 1 ANNALS OF CONG. 434 (Joseph Gales ed., 1789) ("[N]o person shall . . . be obliged to relinquish his property, where it may be necessary for public use, without a just compensation."). Like some of the state clauses, see supra notes 112-13 and accompanying text, this wording supports the notion that the government's act of taking may by definition constitute a public use - the broadest possible interpretation of the phrase.
164. 1 ANNALS OF CONG. 753-54. See also Stoebuck, supra note 55, at 595.
165. See supra notes 100-09 and accompanying text.
166. 2 U.S. (2 Dall.) 304 (C.C.D. Pa. 1795).
167. PA. CONST. of 1776, Decl. of Rights, § VIII, reprinted in 8 SOURCES, supra note 79, at 278.
168. Dorrance, 2 U.S. (2 Dall.) at 310-12.
169. Id. at 312.
170. Id. at 310.
171. Id.
172. Id. at 311-12.
173. Id. at 312.
174. Id. at 312-15.
175. See supra note 58.
176. Cf. 1 BLACKSTONE, supra note 58, at *140 (stressing the importance of "indemnification").
177. Dorrance, 2 US. (2 Dall.) at 311.
178. Id. at 312.
179. 3 US. (3 Dall.) 386 (1798).
180. Id. at 386-400.
181. Id. at 383.
182. Id.
183. The reference here, of course, is to the mill acts. See supra notes 91-97 and accompanying text.
184. Calder, 3 U.S. (3 Dall.) at 383.
185. Among those who failed, or refused, to hear was Iredell. He observed in Calder, Some of the most necessary and important acts of Legislation, are . . . founded upon the principle that private rights must yield to public exigencies. Highways are run through private grounds. Fortifications, Light-houses, and other public edifices, are necessarily sometimes built upon the soil owned by individuals. In such, and similar cases, if the owners should refuse voluntarily to accommodate the public, they must be constrained, as far as the public necessities require; and justice is done, by allowing them a reasonable equivalent. Id. at 400. This certainly seems a "public benefit" rather than a "public use" interpretation. See supra note 23. For this reason, Iredell would possibly - indeed, probably - have found the mill acts acceptable exercises of legislative power in light of the benefits that those acts conferred upon the public, although he did not here mention them.
186. See supra notes 91-92 and accompanying text.
187. See Philip Nichols, Jr., The Meaning of Public Use in the Law of Eminent Domain, 20 B.U. L. REV. 615, 617 n.14 (1940); Stoebuck, supra note 55, at 589.
188. 18 Wend. 9 (N.Y. 1837). For discussions of Bloodgood and its impact, see SACKMAN, supra note 70, at 617 n.14.
189. Bloodgood, 18 Wend. at 10-11.
190. Id. at 10.
191. Id. at 60.
192. Id.
193. Id. at 62.
194. Id. at 62-63.
195. See, e.g., CHARLES G. HAINES, THE REVIVAL OF NATURAL LAW CONCEPTS 88-95, 145-65 (1965).
196. See, e.g., Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 624 (1819) (Marshall, C.J.); Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810); HAINES, supra note 169, at 90-91 (describing Marshall's adherence to vested rights doctrines in these and other cases).
197. See, e.g., Charles River Bridge v. Warren Bridge, 36 U.S. (11 Pet.) 420, 583 (1837) (Story, J., dissenting); Dartmouth College, 17 U.S. (4 Wheat.) at 666 (Story, J.).
198. See, e.g., Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 83 (1872) (Field, J., dissenting).
199. See notes 169-72 and accompanying text.
200. See, e.g., Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984); Berman v. Parker, 348 U.S. 26 (1954).
201. Bloodgood, 18 Wend. at 71-72.
202. See WALTER LAFEBER, THE AMERICAN AGE: UNITED STATES FOREIGN POLICY AT HOME AND ABROAD SINCE 1750, at 149 (1989);
203. FOSTER R. DULLES, AMERICA'S RISE TO WORLD POWER 1 (1955).
204. See Mass. Mill Act of 1714, supra note 93, at 729.
205. JOHN A. GARRATY, THE NEW COMMONWEALTH, 1877-1890, at 80-98 (1968).
206. See, e.g., Hawaii Housing Authority, 467 U.S. 229; Berman, 348 U.S. 26.
207. See, e.g., Berman, 348 U.S. at 33-35.