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The Public Use Requirement and Doctrinal Renewal

November 2012

Citation: ELR 10999

Author: Steven J. Eagle

For a generation, our view of the scope of government's eminent domain power has been framed by three cases, Berman v. Parker, Hawaii Housing Authority v. Midkiff, and Poletown Neighborhood Council v. City of Detroit.

In Berman, the U.S. Supreme Court held that the use of eminent domain to alleviate urban blight could encompass the condemnation of nonblighted commercial structures within the blighted area. Having concluded that slum clearance was a legitimate governmental purpose, the Court accorded the legislature extraordinary latitude in achieving it. Furthermore, the Court swept aside constitutional objections to the use of eminent domain for beautification as well as for slum eradication, and to governmental acquisition of parcels with the intent of reconveying them to profit-seeking redevelopers. "Once the object is within the authority of [the U.S.] Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end."

In Midkiff, the Court upheld a Hawaiian land reform statute that would permit underlying fee titles to be condemned at the behest of their respective ground lessees, with subsequent reconveyance to the lessees. The Court declared: "The 'public use' requirement is . . . coterminous with the scope of a sovereign's police powers." In Poletown, the Michigan Supreme Court upheld as a public use the condemnation of an entire ethnic neighborhood for demolition and replacement by a General Motors (GM) Corporation assembly plant. The court declared: "The power of eminent domain is to be used in this instance primarily to 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."

The author is a Professor of Law at George Mason University. He may be contacted at seagle@gmu.edu.

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