STATEMENT OF JONATHAN TURLEY, PROFESSOR OF PUBLIC
INTEREST LAW, THE GEORGE WASHINGTON UNIVERSITY
LAW SCHOOL
SEPTEMBER 7, 2005

House Agriculture Committee

Mr. TURLEY. Thank you very much, Mr. Chairman. It is an honor to appear here before the members of this committee.
As we all know, there is a firestorm of controversy of the Su-
preme Court case, which I also believe was wrongly decided, even though I have argued in the past, in academic pieces, for the expansion of public use. In some context, I thought this decision was facially wrong, and I don’t see how the Court came to its conclusion, which required it to negate portions of the takings clause, to effectively make them nonexistent. The clause makes a reference to public use. We interpret constitutional amendments so that words
mean something. And in this case, the public use reference didn’t even amount to a speed bump for the Court on its way of effectively negating the protections of the clause.
What is ironic, the Supreme Court in some ways did what it
often wants to do, it united the country. The country seems entirely united in opposition to its decision. Over 90 percent of Americans oppose it. And this is a circumstance where the plain meaning of this amendment, which was so lost on the Supreme Court, is well understood by citizens. But this is more than just a case of the opportunistic use of eminent domain by a small town. The takings clause means more than that. It is a self-defining moment. It defines not just our Government, it defines us.

When we formed this republic, the framers spoke clearly as to
the connection between private property rights and individual
rights. This is not a question of property rights alone. The framers were clear. They took these ideas from Locke and from Blackstone, that I put into my written testimony, that you cannot protect rights without protecting property. Indeed, Blackstone said not even the general good is enough to deprive people of property.
What is involved in the takings clause was the main concern of
James Madison, and that is the dysfunctional effect of factions. The entire constitutional system is designed to resist the effect of factions. This is the scourge of every prior system of government. It was indeed the greatest vulnerability identified by James Madison in developing our system of government. The takings clause is one of the critical protections against factional interests, and the decision in Kelo strips it of that necessary protection.
The takings clause itself I will not get into because, quite frankly, I consider it to be abundantly clear. You might debate what public use means, but it is clear what it does not mean. It does not mean private use. And ultimately this decision read it in a way, that reduces the amendment simply to a guarantee of compensation. When you do that, when you adopt that permissive interpretation, you get the abuses that we are seeing across the country. I  have listed many of those abuses from actual cases in my testimony. My favorite moment in constitutional sports was the condemnation of a Walgreens in Cincinnati to build a Nordstrom department store, and then they turned around and condemned a CVS to relocate the Walgreens, and then condemned other businesses to relocate the CVS. If that isn’t a bloody nightmare for someone like James Madison, I don’t know what would be.
The clear indication here is that the Constitution is to give bar-
riers, to give lines, for politicians who frankly cannot be left to
their own devises. When you give someone the authority to use eminent domain, with only a requirement of compensation, it will be used. This is the type of power that followed the theory of gas in a closed space. If you expand the space, the gas will fill it. And I promise you, after this decision, there is going to be an absolute rush to use eminent domain and simply compete people at market value, which is often significantly less than what they turn down from private developers.
How did we get to this point? I am not too sure. We started out pretty darn well. If you read the thoughts of the framers and read the early cases of the Supreme Court. In cases like Calder v. Bull, they clearly got it. They knew what public use meant, and they insisted that it cannot involve the transfer of private property to another private individual. Things started to go wrong in the early 1900’s, when the Supreme Court started to loosen up the definition. And the minute it did, the minute it abandoned that bright line rule, it was inevitable that we would find ourselves here today.
Gradually the Court adopted, as it affirmed in its last decision,
that public use can mean public purpose. And once you are there, there is really no going back.
Now, in terms of how we rectify this situation, this bill is a good start, but it dramatically needs to be rewritten. There are various areas of this bill that needs attention. I will name just a few. One is the obvious meaning of economic development in section 2, which we all agree needs to be rewritten, and you have to deal with the issue of blight and whether you will allow for condemnations for blight or negative externalities, such as increased crime, drug use, et cetera, that might come from abandoned houses. It also seems to suggest that economic development will be self-defined by themunicipality. They are not going to call it economic development the minute you pass this bill. They are going to call it something else and you need to have a definition that would encompass that.
It is not clear what unit of Government means in section 2, other than the State. That needs to be closely defined. It is not clear what the time line is under 2(b)(1). If they have ever used eminent domain, does that mean they are barred from Federal contracts? Is there a year designation or requirement that you want to put in?
It is also not clear why you have section 2(b)(2), since 2(b)(1) would effectively guarantee compensation.
Two broader notes, before I realize I am out of time, that I wish to note. One is whether the committee members want to consider the use of private attorneys general. In a case like this, I have no faith in government. I have more faith in citizens bringing these issues vigorously to the government. And so there is a question of whether you want a provision for private attorney generals so that they don’t have to convince the government agencies to do the right thing.
Finally, you may want to consider a debarment section analogy, that instead of waiting for the Federal agency to go to the city on an issue of development, to allow citizens to go to a designated agency to get a municipality classified as abusing this provision.
That would effectively, to use an analogous term, debar the jurisdiction from development funds. That would be a much more effective means, because it would put the issue before the State starts to move around projects and get around a definition. It would allow an agency to make a decision that this municipality is in clear violation of the law.
I am way over my time, and so I will thank you again, and I
would be more than willing to answer any questions you may have.
[The prepared statement of Mr. Turley appears at the conclusion of the hearing.]
The CHAIRMAN. Thank you, Professor Turley.

For the hearing transcript and testimony, click here.