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 ex-
pansion of public use. In some context, I thought this decision was
facially wrong, and I don’t see how the Court came to its conclu-
sion, 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 op-
portunistic use of eminent domain by a small town. The takings
clause means more than that. It is a self-defining moment. It de-
fines 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
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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 fac-
tions. 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 deci-
sion in Kelo strips it of that necessary protection.
The takings clause itself I will not get into because, quite frank-
ly, 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 compensa-
tion. When you do that, when you adopt that permissive interpreta-
tion, you get the abuses that we are seeing across the country. I
have listed many of those abuses from actual cases in my testi-
mony. My favorite moment in constitutional sports was the con-
demnation of a Walgreens in Cincinnati to build a Nordstrom de-
partment store, and then they turned around and condemned a
CVS to relocate the Walgreens, and then condemned other busi-
nesses 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 in-
sisted that it cannot involve the transfer of private property to an-
other 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
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to suggest that economic development will be self-defined by the
municipality. 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 juris-
diction from development funds. That would be a much more effec-
tive 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 vio-
lation 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 written testimony http://agriculture.house.gov/hearings/109/10915.pdf