Maureen E. Brady, Harvard Law School, has posted Debates Over "Public Use" in the State Constitutional Conventions:
Historians and legal scholars alike have previously noted that the meaning of "public use" began to change in the nineteenth century, continuing into the twentieth. In the hands of some state courts, "public use" expanded from an approach dependent on "use by the public" to one that at least occasionally tolerated "use for the public benefit." This shift in meaning laid the groundwork for Berman v. Parker, the urban renewal decision from the United States Supreme Court that provided support for the broad reading of "public use" in the 2005 decision Kelo v. City of New London.
In this Essay, I focus my attention on one of the vectors for the emergence of "public benefit" conceptions of the public use requirement: state constitutional text itself. In the nineteenth century, several states specifically authorized takings for private use in their state constitutions, usually to benefit local and economically critical industries. In other states, this approach was explicitly rejected.
Although these private-use provisions have been noted by other scholars, this Essay collects and examines them as a group, including the lessons about "public use" that one might glean from the fruitful and fascinating debates that these provisions engendered among nineteenth-century lawyers at constitutional conventions. The conventions are an important site for understanding the logic underlying "public benefit" conceptions of "public use." And they might shape the future of "public use" doctrine by offering historical grounding for alternative conceptions of the line between permissible and impermissible takings, whether as a matter of federal or state constitutional law.
Dan Ernst
