There were numerous instances in various states in which eminent domain was permitted even for transfers between private individuals, usually because such activities had been going on since colonial times, or because they were perceived as serving some desirable public end in furthering the development of the country. Examples of such transactions that transferred property from one individual to another include the colonial Mill Acts, which carried over after the American Revolution; the practice in certain states of granting eminent domain powers to landlocked owners to take land for access roads; and such other uses as irrigation, drainage, reclamation of wetlands, mining operations, lumbering, and clearing a disputed title. 36 Presumably the framers were aware of the widespread use of eminent domain to transfer property from one private party to another. It appears unlikely that the framers intended to prohibit all such transfers merely through reliance on the term "public use." We believe it is more plausible that the framers desired to limit governmentallymandated transfers between private parties to those exchanges that provide benefits to the public at large -- rather than merely to the private beneficiaries of the transfer. This interpretation reconciles the widely accepted practice of private-private transfers with the framers' concern (expressed eloquently by Madison in The Federalist Number 10) for preventing "the abuse of factions." The framers were concerned about government actions that merely favored one private faction over another. The "public use" limitation seems to have been directed at this concern. There is no evidence that it was directed at limiting "benign", justly compensated takings that advanced the "public welfare" -- albeit through exchanges that left property in new private hands. 37 In sum, construed in a manner consistent with its original meaning, the phrase "public use" does not appear to prohibit takings that place 36 Paul, Public Use: A Vanishing Limitation on Governmental Takings, 4 Cato J. 835, 837 (1985) (citation omitted), citing P. Nichols, The Law of Eminent Domain §7.62 (3d ed. 1980). 37 Admittedly, the concept of “benign” takings aimed at advancing the "public welfare" is ill-defined, and, thus, subject to abuse. Nebulous "public policy" grounds may, for example, be cited in favor of takings that, in reality, accrue primarily to the benefit of narrow special interest groups. property in private hands or otherwise benefit particular private constituencies, as long as the takings are of a sort that benefit the general public. 38 E. The Meaning and Measure of "Just Compensation" 1. The Meaning of Just Compensation The term "just compensation" was not specifically defined in 18th century legal treatises or dictionaries. Nevertheless, helpful information concerning that phrase can be gleaned from 18th century meanings of the 38 Consistent with this analysis, the noted constitutional commentator Thomas Cooley recognized that transfers to private parties qualify as "public uses" if they provide genuine benefits to the public: "on the principle of public benefit, not only the State and its political subdivisions, but also individuals and corporate bodies, have been authorized to take private property for the construction of works of public utility, and when duly empowered by the legislature so to do, their private pecuniary interest does not preclude their being regarded as public agencies in respect to the public good which is sought to be accomplished." T. Cooley, A Treatise on the Constitutional Limitations 776 (7th ed. 1903) (citation omitted). In a similar vein, Professor Richard Epstein argues that takings benefiting private parties pass "public use" muster if the property taken retains "public good" characteristics i.e., the property is operated under "common carrier" conditions, generating services that are publicly available on a nondiscriminatory basis. See R. Epstein, Takings 166-69 (1985). - Of course, the concept "benefit to the public" is subject to being construed in an extremely expansive, arguably abusive, fashion. For example, in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), the Supreme Court upheld the Hawaii Land Reform Act of 1967, which allowed the state to take real property from lessors for just compensation. According to the Court, that Act yielded public benefits by correcting real estate market "deficiencies" and by alleviating "social problems" stemming from "land oligopoly." In Poletown Neighborhood Council v. City of Detroit, 304 N.W. 2d 455 (Mich. 1981), the Supreme Court of Michigan (construing the Michigan Constitution's just compensation clause) upheld Detroit's eminent domain acquisition of land in a Detroit's residential neighborhood for construction of a General Motors auto assembly plant. The Court reasoned that the acquisition would benefit the public by "alleviating unemployment” and “revitalizing the economic base of the community." Midkiff and Poletown might be criticized on the ground that the takings in question primarily benefited particular private constituencies (certain tenants and one auto manufacturer, respectively), rather than the general public. Nevertheless, it cannot categorically be stated that the "public benefits" cited in those cases (the "alleviation of land oligopoly" and “revitalization of the local economy," respectively) are inconsistent with the meaning of the term "public use" even though those holdings stretch that term rather far. ... words "just" and "compensation". Samuel Johnson's 18th century Dictionary of the English Language defines "just" as "exact; proper; accurate; equally retributed ... complete without superfluity or defect." 39 "Compensation" is "something equivalent; amends."40 Taken together, these definitions tend to indicate that "just compensation" signifies an exact, accurate, complete payment, made to recompense an individual by rendering to him an amount equivalent to what he has lost. According to this interpretation, "just compensation" involves full payment for the harm an individual has sustained payment that leaves the individual as well off as if no harm had been inflicted in the first place. 41 - This interpretation of the meaning of just compensation is consistent with a discussion found in Blackstone's Commentaries. In discussing takings by government for the public good, Blackstone stresses that government cannot take "by absolutely stripping subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained."42 In short, Blackstone's analysis of what constitutes appropriate compensation for a taking (full indemnification for the injury sustained) fully squares with a textual analysis of the phrase "just compensation". This tends to support the 39 S. Johnson, Dictionary of the English Language (ed. 1755). 40 Id. 41 - 41 Alternatively, it might be argued that "just compensation" means "fair" rather than "full" compensation in Johnson's terminology, a "proper" amount to make "amends" for a harm suffered. According to such an alternative interpretation, the government might, for example, be empowered to determine what is a "fair" amount to be paid for a taking; an amount fully equivalent to the diminution in the aggrieved individual's property value might not be required. That interpretation, however, is hard to square with Johnson's specific references to "just" as "something equivalent" and to "compensation" as "complete". Compensation that is less than the taking-related drop in property value, would appear to be neither "equivalent" nor "complete." This conclusion is further buttressed by the fact that Johnson defines the verb "compensate" as "to be equivalent to". In sum, the better interpretation appears to be that "just compensation" originally meant "full compensation" that equals the taking-related diminution in the value of an individual's property rights. 42 W. Blackstone, supra, at 52. Given the framers' respect for Blackstone, it is certainly plausible to suggest that, in fashioning the just compensation clause, the framers may have been attempting to guarantee the result that Blackstone praised. If so, it is not at all surprising that the plain meaning of the words the framers employed (“just compensation") appear to yield an outcome identical to the one described by Blackstone. proposition that "just compensation" meant in the 18th century what it means today. A review of the historical development of the "just compensation principle" serves as a further check on our conclusion regarding the meaning of "just compensation." The following historical analysis suggests that the plain textual analysis of the term "just compensation" is indeed accurate. The earliest recognition of the government's right to take property together with a requirement that compensation be paid therefor -- is found in Chapter 28 of the Magna Carta of 1215, which reads, "No constable or other bailiff of ours shall take corn or other provisions from anyone without immediately tendering money therefor, unless he can have postponement thereof by permission of the seller." 44 Several English sewer statutes, enacted beginning in 1427, yield further evidence of an early acknowledgement of the power of the government to take private property. 43 Stating that ancient gutters, walls, ditches, bridges, and lowlands had fallen into disrepair, one statute appointed commissioners to supervise their repair and maintenance. These commissioners were given the power to take land for this purpose "where shall need of new to make." Neither condemnation nor compensation procedures were specified. In practice, however, compensation was often expected, and usually paid, for such takings. 45 Indeed, in addressing the reach of these sewer statutes in 1622, a contemporary jurist stated that where any man's particular interest and inheritance is prejudiced for the Commonwealth's cause, by any such new erected [sewer] works, That part of the Country be ordered to recompence the same which have good thereby, according as is wisely and discreetly ordered by two several Statutes 43 Stat. 6 Hen. 6, c. 5 (1427); see also Stat. 9 Hen. 6, c. 9 (1430); Stat. 18 Hen. 6, c. 10 (1439); Stat. 23 Hen. 6, c. 8 (1444-45); Stat. 12 Edw. 4, c. 6 (1472); Stat. 4 Hen. 7, c. 1 (1488-89); Stat. 6 Hen. 8, c. 10 (1514-15). 44 Stat. 6 Hen. 6, c. 5 (1427). 45 See Stoebuck, A General Theory of Eminent Domain, 47 Wash. L. Rev. 553, 576-77 (1972). [which] may serve as good Rules to direct our Commissioners [of sewers] to imitate upon like occasion happening. 46 The first recorded statutory compensation provisions are found in the sixteenth century. In 1514, a statute authorized the city of Canterbury to improve a river channel, but required compensation for the accompanying unavoidable destruction of mills and dams. 47 Other similar statutes required cities or counties to pay for land taken in river improvements efforts. 48 In the seventeenth and eighteenth centuries, compensation for takings of property became a more regular component of English parliamentary acts, with each statute providing its own compensation scheme. 49 Based upon this statutory history, it has been argued that compensation for takings of property was recognized as a customary practice during the American colonial era. 50 Consistent with this observation, a variety of highway statutes adopted by American colonial legislatures provided compensation for land taken for roads, if the land taken had previously been either improved or enclosed. It was almost universally recognized that no compensation was to be paid for takings of unenclosed or unimproved lands."1 Nevertheless, it has been posited that the practice of paying only for takings of enclosed or improved lands did not deny the general right of compensation. Those who have conducted a thorough analysis of colonial history contend that, because there was an overabundance of unimproved land, the colonials simply presumed that a new road over unimproved or unenclosed land would always give more value to the landowner than the land it occupied. 52 46 51 "Stoebuck, supra, at 577, citing R. Callis, Reading Upon the Statutes of Sewers (1685). 47 Stat. 6 Hen. 8, c. 17 (1514-15). 48 See Stat. 31 Hen. 8, c. 4 (1534); Stat. 27 Eliz., c. 20 (1585); Stat. 27 Eliz., c. 22 (1585). 49 See Stoebuck, supra, at 561-62, nn. 28-32. 50 Id. at 579. The 17th century European legal theorists Hugo Grotius and Samuel Pufendorf also advocated the payment of just compensation for the taking of property. See H. Grotius, De Jure Belli ac Pacis, Bk. II, ch. XIV, VII, VIII (F. Kelsey translation 1925); S. Pufenderf, De Jurae Naturaeet Gentium, BK. VIII, ch. 5, §7 (C. and W. Oldfather translations 1934). 51 "The only documented exception to this practice was Massachusetts, which compensated for takings of unimproved land. See Note, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale L.J. 694, 695 (1985). 52 See Stoebuck, supra, at 583. |