n April 14, 2021, the Cato Institute filed an Amicus Curiae Brief in Eychaner v. City of Chicago, No. 20-1214, a case in which the Supreme Court of the United States could consider whether to expand the Takings Clause even further than it already did in Kelo v. City of New London, 545 U.S. 469 (2005). Naturally, Cato would have the Court refuse to expand the constitutional provision with Eychaner, and in the process overturn Kelo and restore meaning to the express “public use” requirement of the Takings Clause.
With its Brief, Cato reminded the Court that the founding fathers and American settlers held sacrosanct the belief that the government must not be allowed to take private property for anything but the most necessary public use. For centuries, the Clause’s public-use requirement was afforded its ordinary meaning, with the judiciary playing its counter-majoritarian role as constitutional protector.
However, with its Kelo decision, the Court watered down the Clause’s requirement of public use by allowing private property to be taken and transferred to other private entities, as long as there were incidental public benefits or the legislature could identify something possibly helpful to the public, including tax revenue. A relevant fact in Kelo was that the area in which the property was situated was sufficiently distressed. In Eychaner, the property’s area is farther from blight, and using Eychaner to expand the Takings Clause would allow a government to take private property and give it to another private party to help reduce the risk of future blight.
Deferring to the legislature because it ostensibly reflects the current will of the people focuses on the “public” in public use, ignores “use,” and thereby abandons the judiciary’s role as protector of the constitution. After all, the word “use” has an ordinary definition that a legislature cannot change to offend the constitution. As Cato correctly notes, deferring to the legislature to ascertain what is a “public” good, rather than adhere to public “use,” ignores the fact that the framers chose not to use the term, “general welfare,” which was used elsewhere in the constitution.
Without protection of individual rights, a legislature will always run roughshod over the individual. In the name of improving the tax base, why not lure the hottest retailer to the area with the promise of cheap real estate? The answers to this question are simple and numerous, but all require that self-interested legislators abandon short-term interests, think big picture, and play the long game. The hottest retailer could be a fad, and the government is displacing customers and employees the business will need. Regardless, the nation was founded on individual liberties; and as a result, America put in place judicial checks on the popular whims that animate the legislature. This time, it is your neighbor’s property taken and given to a flash-in-the-pan cronut bakery. Next time, it could be your property taken so that people can pay eight dollars for a gourmet cupcake.
If the public-use limitation of the Takings Clause, which Kelo expanded to cover private-use-for-public-benefit, is stretched by the Eychaner Court to include the prevention of future blight, the government better be good at predicting the future. Apparently, it is not. With its Brief, Cato provides the most salient example. Cato reveals that the land at issue in Kelo remained undeveloped – not in use by anyone – at least thirteen years after the fact. Any public benefit cited by the legislature to condemn private property for private use never materialized. Since the legislature cannot see the future, the judiciary should resume its role as constitutional protector by enforcing the express public-use limitation of the Takings Clause.
Kelo v. New London, 125 S.Ct. 2655, 162 L.Ed.2d 439, 545 U.S. 469 (2005). Shapiro, Ilya, et al. Brief of The Cato Institute as Amicus Curiae In Support of Petitioner. Cato Institute, 14 Apr. 2021, www.cato.org/sites/cato.org/files/2021-04/Eychaner-cert-stage.pdf. Accessed 15 Apr. 2021.