KELO et al. v. CITY OF NEW LONDON et al.

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
469 OCTOBER TERM, 2004
Syllabus
KELO et al. v. CITY OF NEW LONDON et al.
certiorari to the supreme court of connecticut
No. 04–108. Argued February 22, 2005—Decided June 23, 2005
After approving an integrated development plan designed to revitalize its
ailing economy, respondent city, through its development agent, pur
chased most of the property earmarked for the project from willing
sellers, but initiated condemnation proceedings when petitioners, the
owners of the rest of the property, refused to sell. Petitioners brought
this state-court action claiming, inter alia, that the taking of their prop
erties would violate the “public use” restriction in the Fifth Amend
ment’s Takings Clause. The trial court granted a permanent restrain
ing order prohibiting the taking of some of the properties, but denying
relief as to others. Relying on cases such as Hawaii Housing Author
ity v. Midkiff, 467 U. S. 229, and Berman v. Parker, 348 U. S. 26, the
Connecticut Supreme Court affirmed in part and reversed in part, up
holding all of the proposed takings.
Held: The city’s proposed disposition of petitioners’ property qualifies as
a “public use” within the meaning of the Takings Clause. Pp. 477–490.
(a) Though the city could not take petitioners’ land simply to confer
a private benefit on a particular private party, see, e. g., Midkiff, 467
U. S., at 245, the takings at issue here would be executed pursuant to a
carefully considered development plan, which was not adopted “to bene
fit a particular class of identifiable individuals,” ibid. Moreover, while
the city is not planning to open the condemned land—at least not in its
entirety—to use by the general public, this “Court long ago rejected
any literal requirement that condemned property be put into use for the
. . . public.” Id., at 244. Rather, it has embraced the broader and more
natural interpretation of public use as “public purpose.” See, e. g., Fall
brook Irrigation Dist. v. Bradley, 164 U. S. 112, 158–164. Without ex
ception, the Court has defined that concept broadly, reflecting its long
standing policy of deference to legislative judgments as to what public
needs justify the use of the takings power. Berman, 348 U. S. 26; Mid
kiff, 467 U. S. 229; Ruckelshaus v. Monsanto Co., 467 U. S. 986.
Pp. 477–483.
(b) The city’s determination that the area at issue was sufficiently
distressed to justify a program of economic rejuvenation is entitled to
deference. The city has carefully formulated a development plan that
it believes will provide appreciable benefits to the community, including,

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
470 KELO v. NEW LONDON
Syllabus
but not limited to, new jobs and increased tax revenue. As with other
exercises in urban planning and development, the city is trying to coor
dinate a variety of commercial, residential, and recreational land uses,
with the hope that they will form a whole greater than the sum of its
parts. To effectuate this plan, the city has invoked a state statute that
specifically authorizes the use of eminent domain to promote economic
development. Given the plan’s comprehensive character, the thorough
deliberation that preceded its adoption, and the limited scope of this
Court’s review in such cases, it is appropriate here, as it was in Berman,
to resolve the challenges of the individual owners, not on a piecemeal
basis, but rather in light of the entire plan. Because that plan unques
tionably serves a public purpose, the takings challenged here satisfy the
Fifth Amendment. Pp. 483–484.
(c) Petitioners’ proposal that the Court adopt a new bright-line rule
that economic development does not qualify as a public use is supported
by neither precedent nor logic. Promoting economic development is a
traditional and long-accepted governmental function, and there is no
principled way of distinguishing it from the other public purposes the
Court has recognized. See, e. g., Berman, 348 U. S., at 33. Also re
jected is petitioners’ argument that for takings of this kind the Court
should require a “reasonable certainty” that the expected public benefits
will actually accrue. Such a rule would represent an even greater de
parture from the Court’s precedent. E. g., Midkiff, 467 U. S., at 242.
The disadvantages of a heightened form of review are especially pro
nounced in this type of case, where orderly implementation of a compre
hensive plan requires all interested parties’ legal rights to be estab
lished before new construction can commence. The Court declines to
second-guess the wisdom of the means the city has selected to effectuate
its plan. Berman, 348 U. S., at 35–36. Pp. 484–490.
268 Conn. 1, 843 A. 2d 500, affirmed.
Stevens, J., delivered the opinion of the Court, in which Kennedy,
Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed a con
curring opinion, post, p. 490. O’Connor, J., filed a dissenting opinion, in
which Rehnquist, C. J., and Scalia and Thomas, JJ., joined, post, p. 494.
Thomas, J., filed a dissenting opinion, post, p. 505.
Scott G. Bullock argued the cause for petitioners. With
him on the briefs were William H. Mellor, Dana Berliner,
and Scott W. Sawyer.

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
471 Cite as: 545 U. S. 469 (2005)
Counsel
Wesley W. Horton argued the cause for respondents.
With him on the brief were Thomas J. Londregan, Jeffrey T.
Londregan, Edward B. O’Connell, and David P. Condon.*
*Briefs of amici curiae urging reversal were filed for the American
Farm Bureau Federation et al. by Michael M. Berger, Nancy McDonough,
and Gideon Kanner; for America’s Future, Inc., et al. by Andrew L.
Schlafly; for the Becket Fund for Religious Liberty by Anthony R. Pica
rello, Jr., and Roman P. Storzer; for the Better Government Association
et al. by Barry Levenstam and Jeremy M. Taylor; for the Cascade Policy
Institute et al. by James L. Huffman; for the Cato Institute by Richard A.
Epstein, Timothy Lynch, and Robert A. Levy; for the Claremont Institute
Center for Constitutional Jurisprudence by John C. Eastman; for Develop
Don’t Destroy (Brooklyn), Inc., et al. by Norman Siegel and Steven
Hyman; for the Goldwater Institute et al. by Mark Brnovich; for King
Ranch, Inc., by Michael Austin Hatchell and William Scott Hastings; for
the Mountain States Legal Foundation et al. by William Perry Pendley
and Joseph F. Becker; for the National Association for the Advancement
of Colored People et al. by Jason M. Freier, Dennis Courtland Hayes,
Michael Schuster, and Douglas E. Gershuny; for the National Association
of Home Builders et al. by Mary Lynn Pickel, John J. Delaney, Laurene
K. Janik, and Ralph W. Holmen; for New London Landmarks, Inc., et al.
by Michael E. Malamut, Andrew R. Grainger, and Martin J. Newhouse;
for the New London R. R. Co., Inc., by Michael D. O’Connell; for the
Property Rights Foundation of America, Inc., by H. Christopher Bartolo
mucci and Jonathan L. Abram; for the Reason Foundation by Mark A.
Perry and Thomas H. Dupree, Jr.; for the Rutherford Institute by John
W. Whitehead; for the Tidewater Libertarian Party by Stephen Merrill;
for David L. Callies et al. by Mr. Callies, pro se; for Mary Bugryn Dudko
et al. by James S. Burling; for Jane Jacobs by Robert S. Getman; for
Laura B. Kohr et al. by Joel R. Burcat and John C. Snyder; for John
Norquist by Frank Schnidman; and for Robert Nigel Richards et al. by
Kenneth R. Kupchak and Robert H. Thomas.
Briefs of amici curiae urging affirmance were filed for the State of
Connecticut by Richard Blumenthal, Attorney General, and Robert D.
Snook, Assistant Attorney General; for the State of Vermont et al. by
William H. Sorrell, Attorney General of Vermont, and Bridget C. Asay
and S. Mark Sciarrotta, Assistant Attorneys General, and by the Attor
neys General for their respective jurisdictions as follows: M. Jane Brady
of Delaware, Robert J. Spagnoletti of the District of Columbia, Mark J.
Bennett of Hawaii, Lisa Madigan of Illinois, J. Joseph Curran, Jr., of

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
472 KELO v. NEW LONDON
Opinion of the Court
Justice Stevens delivered the opinion of the Court.
In 2000, the city of New London approved a development
plan that, in the words of the Supreme Court of Connecticut,
was “projected to create in excess of 1,000 jobs, to increase
tax and other revenues, and to revitalize an economically dis
tressed city, including its downtown and waterfront areas.”
268 Conn. 1, 5, 843 A. 2d 500, 507 (2004). In assembling the
land needed for this project, the city’s development agent has
purchased property from willing sellers and proposes to use
the power of eminent domain to acquire the remainder of the
property from unwilling owners in exchange for just com
pensation. The question presented is whether the city’s
proposed disposition of this property qualifies as a “public
use” within the meaning of the Takings Clause of the Fifth
Amendment to the Constitution.1
Maryland, Mike McGrath of Montana, Eliot Spitzer of New York, W. A.
Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Patrick C.
Lynch of Rhode Island, Lawrence E. Long of South Dakota, and Paul G.
Summers of Tennessee; for the American Planning Association et al. by
Thomas W. Merrill and John D. Echeverria; for Brooklyn United for Inno
vative Local Development (BUILD) et al. by David T. Goldberg and Sean
H. Donahue; for the California Redevelopment Association by Iris P.
Yang; for the City of New York by Michael A. Cardozo, Leonard J.
Koerner, Edward F. X. Hart, and Jane L. Gordon; for the Connecticut
Conference of Municipalities et al. by Allan B. Taylor and Michael P.
Shea; for the K. Hovnanian Companies, LLC, by Paul H. Schneider; for
the Massachusetts Chapter of the National Association of Industrial and
Office Properties by R. Jeffrey Lyman and Richard A. Oetheimer; for the
Mayor and City Council of Baltimore by Ralph S. Tyler III; for the Na
tional League of Cities et al. by Richard Ruda, Timothy J. Dowling, and
J. Peter Byrne; for the New York State Urban Development Corp. d/ b/a
Empire State Development Corp. by Joseph M. Ryan, John R. Casolaro,
Susan B. Kalib, and Jack Kaplan; and for Robert H. Freilich et al. by
Mr. Freilich, pro se.
1 “[N]or shall private property be taken for public use, without just com
pensation.” U. S. Const., Amdt. 5. That Clause is made applicable to the
States by the Fourteenth Amendment. See Chicago, B. & Q. R. Co. v.
Chicago, 166 U. S. 226 (1897).

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
473 Cite as: 545 U. S. 469 (2005)
Opinion of the Court
I
The city of New London (hereinafter City) sits at the junc
tion of the Thames River and the Long Island Sound in
southeastern Connecticut. Decades of economic decline led
a state agency in 1990 to designate the City a “distressed
municipality.” In 1996, the Federal Government closed the
Naval Undersea Warfare Center, which had been located in
the Fort Trumbull area of the City and had employed over
1,500 people. In 1998, the City’s unemployment rate was
nearly double that of the State, and its population of just
under 24,000 residents was at its lowest since 1920.
These conditions prompted state and local officials to tar
get New London, and particularly its Fort Trumbull area,
for economic revitalization. To this end, respondent New
London Development Corporation (NLDC), a private non
profit entity established some years earlier to assist the City
in planning economic development, was reactivated. In Jan
uary 1998, the State authorized a $5.35 million bond issue to
support the NLDC’s planning activities and a $10 million
bond issue toward the creation of a Fort Trumbull State
Park. In February, the pharmaceutical company Pfizer Inc.
announced that it would build a $300 million research facility
on a site immediately adjacent to Fort Trumbull; local plan
ners hoped that Pfizer would draw new business to the area,
thereby serving as a catalyst to the area’s rejuvenation.
After receiving initial approval from the city council, the
NLDC continued its planning activities and held a series of
neighborhood meetings to educate the public about the proc
ess. In May, the city council authorized the NLDC to for
mally submit its plans to the relevant state agencies for
review.2 Upon obtaining state-level approval, the NLDC
2 Various state agencies studied the project’s economic, environmental,
and social ramifications. As part of this process, a team of consultants
evaluated six alternative development proposals for the area, which varied
in extensiveness and emphasis. The Office of Policy and Management,
one of the primary state agencies undertaking the review, made findings

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
474 KELO v. NEW LONDON
Opinion of the Court
finalized an integrated development plan focused on 90 acres
of the Fort Trumbull area.
The Fort Trumbull area is situated on a peninsula that juts
into the Thames River. The area comprises approximately
115 privately owned properties, as well as the 32 acres of
land formerly occupied by the naval facility (Trumbull State
Park now occupies 18 of those 32 acres). The development
plan encompasses seven parcels. Parcel 1 is designated for
a waterfront conference hotel at the center of a “small urban
village” that will include restaurants and shopping. This
parcel will also have marinas for both recreational and com
mercial uses. A pedestrian “riverwalk” will originate here
and continue down the coast, connecting the waterfront
areas of the development. Parcel 2 will be the site of ap
proximately 80 new residences organized into an urban
neighborhood and linked by public walkway to the remainder
of the development, including the state park. This parcel
also includes space reserved for a new U. S. Coast Guard
Museum. Parcel 3, which is located immediately north of
the Pfizer facility, will contain at least 90,000 square feet of
research and development office space. Parcel 4A is a 2.4
acre site that will be used either to support the adjacent
state park, by providing parking or retail services for visi
tors, or to support the nearby marina. Parcel 4B will in
clude a renovated marina, as well as the final stretch of the
riverwalk. Parcels 5, 6, and 7 will provide land for office
and retail space, parking, and water-dependent commercial
uses. App. 109–113.
The NLDC intended the development plan to capitalize on
the arrival of the Pfizer facility and the new commerce it was
expected to attract. In addition to creating jobs, generating
tax revenue, and helping to “build momentum for the revital
ization of downtown New London,” id., at 92, the plan was
also designed to make the City more attractive and to create
that the project was consistent with relevant state and municipal develop
ment policies. See App. 89–95.

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
475 Cite as: 545 U. S. 469 (2005)
Opinion of the Court
leisure and recreational opportunities on the waterfront and
in the park.
The city council approved the plan in January 2000, and
designated the NLDC as its development agent in charge of
implementation. See Conn. Gen. Stat. § 8–188 (2005). The
city council also authorized the NLDC to purchase property
or to acquire property by exercising eminent domain in the
City’s name. § 8–193. The NLDC successfully negotiated
the purchase of most of the real estate in the 90-acre area,
but its negotiations with petitioners failed. As a conse
quence, in November 2000, the NLDC initiated the condem
nation proceedings that gave rise to this case.3
II
Petitioner Susette Kelo has lived in the Fort Trumbull
area since 1997. She has made extensive improvements to
her house, which she prizes for its water view. Petitioner
Wilhelmina Dery was born in her Fort Trumbull house in
1918 and has lived there her entire life. Her husband
Charles (also a petitioner) has lived in the house since they
married some 60 years ago. In all, the nine petitioners own
15 properties in Fort Trumbull—4 in parcel 3 of the develop
ment plan and 11 in parcel 4A. Ten of the parcels are occu
pied by the owner or a family member; the other five are
held as investment properties. There is no allegation that
any of these properties is blighted or otherwise in poor con
dition; rather, they were condemned only because they hap
pen to be located in the development area.
In December 2000, petitioners brought this action in the
New London Superior Court. They claimed, among other
things, that the taking of their properties would violate the
“public use” restriction in the Fifth Amendment. After a
7-day bench trial, the Superior Court granted a permanent
restraining order prohibiting the taking of the properties lo
3 In the remainder of the opinion we will differentiate between the City
and the NLDC only where necessary.

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
476 KELO v. NEW LONDON
Opinion of the Court
cated in parcel 4A (park or marina support). It, however,
denied petitioners relief as to the properties located in parcel
3 (office space). App. to Pet. for Cert. 343–350.4
After the Superior Court ruled, both sides took appeals to
the Supreme Court of Connecticut. That court held, over a
dissent, that all of the City’s proposed takings were valid.
It began by upholding the lower court’s determination that
the takings were authorized by chapter 132, the State’s mu
nicipal development statute. See Conn. Gen. Stat. § 8–186
et seq. (2005). That statute expresses a legislative determi
nation that the taking of land, even developed land, as part
of an economic development project is a “public use” and in
the “public interest.” 268 Conn., at 18–28, 843 A. 2d, at 515–
521. Next, relying on cases such as Hawaii Housing Au
thority v. Midkiff, 467 U. S. 229 (1984), and Berman v. Par
ker, 348 U. S. 26 (1954), the court held that such economic
development qualified as a valid public use under both the
Federal and State Constitutions. 268 Conn., at 40, 843
A. 2d, at 527.
Finally, adhering to its precedents, the court went on to
determine, first, whether the takings of the particular prop
erties at issue were “reasonably necessary” to achieving the
City’s intended public use, id., at 82–84, 843 A. 2d, at 552–
553, and, second, whether the takings were for “reasonably
foreseeable needs,” id., at 93–94, 843 A. 2d, at 558–559. The
court upheld the trial court’s factual findings as to parcel 3,
but reversed the trial court as to parcel 4A, agreeing with
the City that the intended use of this land was sufficiently
4 While this litigation was pending before the Superior Court, the
NLDC announced that it would lease some of the parcels to private devel
opers in exchange for their agreement to develop the land according to the
terms of the development plan. Specifically, the NLDC was negotiating a
99-year ground lease with Corcoran Jennison, a developer selected from a
group of applicants. The negotiations contemplated a nominal rent of $1
per year, but no agreement had yet been signed. See 268 Conn. 1, 9, 61,
843 A. 2d 500, 509–510, 540 (2004).

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
477 Cite as: 545 U. S. 469 (2005)
Opinion of the Court
definite and had been given “reasonable attention” during
the planning process. Id., at 120–121, 843 A. 2d, at 574.
The three dissenting justices would have imposed a
“heightened” standard of judicial review for takings justified
by economic development. Although they agreed that the
plan was intended to serve a valid public use, they would
have found all the takings unconstitutional because the City
had failed to adduce “clear and convincing evidence” that the
economic benefits of the plan would in fact come to pass.
Id., at 144, 146, 843 A. 2d, at 587, 588 (Zarella, J., joined by
Sullivan, C. J., and Katz, J., concurring in part and dissenting
in part).
We granted certiorari to determine whether a city’s deci
sion to take property for the purpose of economic develop
ment satisfies the “public use” requirement of the Fifth
Amendment. 542 U. S. 965 (2004).
III
Two polar propositions are perfectly clear. On the one
hand, it has long been accepted that the sovereign may not
take the property of A for the sole purpose of transferring
it to another private party B, even though A is paid just
compensation. On the other hand, it is equally clear that a
State may transfer property from one private party to an
other if future “use by the public” is the purpose of the tak
ing; the condemnation of land for a railroad with common
carrier duties is a familiar example. Neither of these
propositions, however, determines the disposition of this
case.
As for the first proposition, the City would no doubt be
forbidden from taking petitioners’ land for the purpose of
conferring a private benefit on a particular private party.
See Midkiff, 467 U. S., at 245 (“A purely private taking could
not withstand the scrutiny of the public use requirement;
it would serve no legitimate purpose of government and
would thus be void”); Missouri Pacific R. Co. v. Nebraska,

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
478 KELO v. NEW LONDON
Opinion of the Court
164 U. S. 403 (1896).5 Nor would the City be allowed to take
property under the mere pretext of a public purpose, when
its actual purpose was to bestow a private benefit. The tak
ings before us, however, would be executed pursuant to a
“carefully considered” development plan. 268 Conn., at 54,
843 A. 2d, at 536. The trial judge and all the members of
the Supreme Court of Connecticut agreed that there was no
evidence of an illegitimate purpose in this case.6 Therefore,
as was true of the statute challenged in Midkiff, 467 U. S.,
at 245, the City’s development plan was not adopted “to ben
efit a particular class of identifiable individuals.”
On the other hand, this is not a case in which the City
is planning to open the condemned land—at least not in its
entirety—to use by the general public. Nor will the private
lessees of the land in any sense be required to operate like
common carriers, making their services available to all com
5 See also Calder v. Bull, 3 Dall. 386, 388 (1798) (“An act of the Legisla
ture (for I cannot call it a law) contrary to the great first principles of
the social compact, cannot be considered a rightful exercise of legislative
authority. . . . A few instances will suffice to explain what I mean. . . . [A]
law that takes property from A. and gives it to B: It is against all reason
and justice, for a people to entrust a Legislature with such powers; and,
therefore, it cannot be presumed that they have done it. The genius, the
nature, and the spirit, of our State Governments, amount to a prohibition
of such acts of legislation; and the general principles of law and reason
forbid them” (emphasis deleted)).
6 See 268 Conn., at 159, 843 A. 2d, at 595 (Zarella, J., concurring in part
and dissenting in part) (“The record clearly demonstrates that the devel
opment plan was not intended to serve the interests of Pfizer, Inc., or any
other private entity, but rather, to revitalize the local economy by creating
temporary and permanent jobs, generating a significant increase in tax
revenue, encouraging spin-off economic activities and maximizing public
access to the waterfront”). And while the City intends to transfer certain
of the parcels to a private developer in a long-term lease—which devel
oper, in turn, is expected to lease the office space and so forth to other
private tenants—the identities of those private parties were not known
when the plan was adopted. It is, of course, difficult to accuse the govern
ment of having taken A’s property to benefit the private interests of B
when the identity of B was unknown.

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
479 Cite as: 545 U. S. 469 (2005)
Opinion of the Court
ers. But although such a projected use would be sufficient
to satisfy the public use requirement, this “Court long ago
rejected any literal requirement that condemned property
be put into use for the general public.” Id., at 244. Indeed,
while many state courts in the mid-19th century endorsed
“use by the public” as the proper definition of public use,
that narrow view steadily eroded over time. Not only was
the “use by the public” test difficult to administer (e. g., what
proportion of the public need have access to the property?
at what price?),7 but it proved to be impractical given the
diverse and always evolving needs of society.8 Accordingly,
7 See, e. g., Dayton Gold & Silver Mining Co. v. Seawell, 11 Nev. 394,
410, 1876 WL 4573, *11 (1876) (“If public occupation and enjoyment of the
object for which land is to be condemned furnishes the only and true test
for the right of eminent domain, then the legislature would certainly have
the constitutional authority to condemn the lands of any private citizen
for the purpose of building hotels and theaters. Why not? A hotel is
used by the public as much as a railroad. The public have the same right,
upon payment of a fixed compensation, to seek rest and refreshment at a
public inn as they have to travel upon a railroad”).
8 From upholding the Mill Acts (which authorized manufacturers de
pendent on power-producing dams to flood upstream lands in exchange
for just compensation), to approving takings necessary for the economic
development of the West through mining and irrigation, many state courts
either circumvented the “use by the public” test when necessary or aban
doned it completely. See Nichols, The Meaning of Public Use in the Law
of Eminent Domain, 20 B. U. L. Rev. 615, 619–624 (1940) (tracing this de
velopment and collecting cases). For example, in rejecting the “use by
the public” test as overly restrictive, the Nevada Supreme Court stressed
that “[m]ining is the greatest of the industrial pursuits in this state. All
other interests are subservient to it. Our mountains are almost barren
of timber, and our valleys could never be made profitable for agricultural
purposes except for the fact of a home market having been created by the
mining developments in different sections of the state. The mining and
milling interests give employment to many men, and the benefits derived
from this business are distributed as much, and sometimes more, among
the laboring classes than with the owners of the mines and mills. . . . The
present prosperity of the state is entirely due to the mining developments
already made, and the entire people of the state are directly interested in
having the future developments unobstructed by the obstinate action of

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
480 KELO v. NEW LONDON
Opinion of the Court
when this Court began applying the Fifth Amendment to
the States at the close of the 19th century, it embraced the
broader and more natural interpretation of public use as
“public purpose.” See, e. g., Fallbrook Irrigation Dist. v.
Bradley, 164 U. S. 112, 158–164 (1896). Thus, in a case up
holding a mining company’s use of an aerial bucket line to
transport ore over property it did not own, Justice Holmes’
opinion for the Court stressed “the inadequacy of use by the
general public as a universal test.” Strickley v. Highland
Boy Gold Mining Co., 200 U. S. 527, 531 (1906).9 We have
repeatedly and consistently rejected that narrow test ever
since.10
The disposition of this case therefore turns on the question
whether the City’s development plan serves a “public pur
pose.” Without exception, our cases have defined that con
cept broadly, reflecting our longstanding policy of deference
to legislative judgments in this field.
In Berman v. Parker, 348 U. S. 26 (1954), this Court upheld
a redevelopment plan targeting a blighted area of Washing
ton, D. C., in which most of the housing for the area’s 5,000
inhabitants was beyond repair. Under the plan, the area
would be condemned and part of it utilized for the construc
tion of streets, schools, and other public facilities. The re
mainder of the land would be leased or sold to private parties
for the purpose of redevelopment, including the construction
of low-cost housing.
any individual or individuals.” Dayton Gold & Silver Mining Co., 11
Nev., at 409–410, 1876 WL, at *11.
9 See also Clark v. Nash, 198 U. S. 361 (1905) (upholding a statute that
authorized the owner of arid land to widen a ditch on his neighbor’s prop
erty so as to permit a nearby stream to irrigate his land).
10 See, e. g., Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Inter
state Power Co., 240 U. S. 30, 32 (1916) (“The inadequacy of use by the
general public as a universal test is established”); Ruckelshaus v. Mon
santo Co., 467 U. S. 986, 1014–1015 (1984) (“This Court, however, has re
jected the notion that a use is a public use only if the property taken is
put to use for the general public”).

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
481 Cite as: 545 U. S. 469 (2005)
Opinion of the Court
The owner of a department store located in the area chal
lenged the condemnation, pointing out that his store was not
itself blighted and arguing that the creation of a “better bal
anced, more attractive community” was not a valid public
use. Id., at 31. Writing for a unanimous Court, Justice
Douglas refused to evaluate this claim in isolation, deferring
instead to the legislative and agency judgment that the area
“must be planned as a whole” for the plan to be successful.
Id., at 34. The Court explained that “community redevelop
ment programs need not, by force of the Constitution, be on a
piecemeal basis—lot by lot, building by building.” Id., at 35.
The public use underlying the taking was unequivocally
affirmed:
“We do not sit to determine whether a particular hous
ing project is or is not desirable. The concept of the
public welfare is broad and inclusive. . . . The values it
represents are spiritual as well as physical, aesthetic as
well as monetary. It is within the power of the legisla
ture to determine that the community should be beauti
ful as well as healthy, spacious as well as clean, well
balanced as well as carefully patrolled. In the present
case, the Congress and its authorized agencies have
made determinations that take into account a wide vari
ety of values. It is not for us to reappraise them. If
those who govern the District of Columbia decide that
the Nation’s Capital should be beautiful as well as sani
tary, there is nothing in the Fifth Amendment that
stands in the way.” Id., at 33.
In Hawaii Housing Authority v. Midkiff, 467 U. S. 229
(1984), the Court considered a Hawaii statute whereby fee
title was taken from lessors and transferred to lessees (for
just compensation) in order to reduce the concentration of
land ownership. We unanimously upheld the statute and re
jected the Ninth Circuit’s view that it was “a naked attempt
on the part of the state of Hawaii to take the property of A

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
482 KELO v. NEW LONDON
Opinion of the Court
and transfer it to B solely for B’s private use and benefit.”
Id., at 235 (internal quotation marks omitted). Reaffirming
Berman’s deferential approach to legislative judgments in
this field, we concluded that the State’s purpose of eliminat
ing the “social and economic evils of a land oligopoly” quali
fied as a valid public use. 467 U. S., at 241–242. Our opin
ion also rejected the contention that the mere fact that the
State immediately transferred the properties to private indi
viduals upon condemnation somehow diminished the public
character of the taking. “[I]t is only the taking’s purpose,
and not its mechanics,” we explained, that matters in deter
mining public use. Id., at 244.
In that same Term we decided another public use case that
arose in a purely economic context. In Ruckelshaus v.
Monsanto Co., 467 U. S. 986 (1984), the Court dealt with pro
visions of the Federal Insecticide, Fungicide, and Rodenti
cide Act under which the Environmental Protection Agency
could consider the data (including trade secrets) submitted
by a prior pesticide applicant in evaluating a subsequent ap
plication, so long as the second applicant paid just compensa
tion for the data. We acknowledged that the “most direct
beneficiaries” of these provisions were the subsequent appli
cants, id., at 1014, but we nevertheless upheld the statute
under Berman and Midkiff. We found sufficient Congress’
belief that sparing applicants the cost of time-consuming re
search eliminated a significant barrier to entry in the pesti
cide market and thereby enhanced competition. 467 U. S.,
at 1015.
Viewed as a whole, our jurisprudence has recognized that
the needs of society have varied between different parts of
the Nation, just as they have evolved over time in response
to changed circumstances. Our earliest cases in particular
embodied a strong theme of federalism, emphasizing the
“great respect” that we owe to state legislatures and state
courts in discerning local public needs. See Hairston v.
Danville & Western R. Co., 208 U. S. 598, 606–607 (1908)

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
483 Cite as: 545 U. S. 469 (2005)
Opinion of the Court
(noting that these needs were likely to vary depending on a
State’s “resources, the capacity of the soil, the relative im
portance of industries to the general public welfare, and the
long-established methods and habits of the people”).11 For
more than a century, our public use jurisprudence has wisely
eschewed rigid formulas and intrusive scrutiny in favor of
affording legislatures broad latitude in determining what
public needs justify the use of the takings power.
IV
Those who govern the City were not confronted with the
need to remove blight in the Fort Trumbull area, but their
determination that the area was sufficiently distressed to
justify a program of economic rejuvenation is entitled to our
deference. The City has carefully formulated an economic
development plan that it believes will provide appreciable
benefits to the community, including—but by no means lim
ited to—new jobs and increased tax revenue. As with other
exercises in urban planning and development,12 the City is
endeavoring to coordinate a variety of commercial, residen
tial, and recreational uses of land, with the hope that they
will form a whole greater than the sum of its parts. To ef
11 See also Clark, 198 U. S., at 367–368; Strickley v. Highland Boy Gold
Mining Co., 200 U. S. 527, 531 (1906) (“In the opinion of the legislature and
the Supreme Court of Utah the public welfare of that State demands that
aerial lines between the mines upon its mountain sides and railways in the
valleys below should not be made impossible by the refusal of a private
owner to sell the right to cross his land. The Constitution of the United
States does not require us to say that they are wrong”); O’Neill v. Leamer,
239 U. S. 244, 253 (1915) (“States may take account of their special exigen
cies, and when the extent of their arid or wet lands is such that a plan for
irrigation or reclamation according to districts may fairly be regarded as
one which promotes the public interest, there is nothing in the Federal
Constitution which denies to them the right to formulate this policy or to
exercise the power of eminent domain in carrying it into effect. With the
local situation the state court is peculiarly familiar and its judgment is
entitled to the highest respect”).
12 Cf. Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926).

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
484 KELO v. NEW LONDON
Opinion of the Court
fectuate this plan, the City has invoked a state statute that
specifically authorizes the use of eminent domain to promote
economic development. Given the comprehensive character
of the plan, the thorough deliberation that preceded its adop
tion, and the limited scope of our review, it is appropriate for
us, as it was in Berman, to resolve the challenges of the
individual owners, not on a piecemeal basis, but rather in
light of the entire plan. Because that plan unquestionably
serves a public purpose, the takings challenged here satisfy
the public use requirement of the Fifth Amendment.
To avoid this result, petitioners urge us to adopt a new
bright-line rule that economic development does not qualify
as a public use. Putting aside the unpersuasive suggestion
that the City’s plan will provide only purely economic bene
fits, neither precedent nor logic supports petitioners’ pro
posal. Promoting economic development is a traditional and
long-accepted function of government. There is, moreover,
no principled way of distinguishing economic development
from the other public purposes that we have recognized. In
our cases upholding takings that facilitated agriculture and
mining, for example, we emphasized the importance of those
industries to the welfare of the States in question, see, e. g.,
Strickley, 200 U. S. 527; in Berman, we endorsed the purpose
of transforming a blighted area into a “well-balanced” com
munity through redevelopment, 348 U. S., at 33; 13 in Midkiff,
13 It is a misreading of Berman to suggest that the only public use up
held in that case was the initial removal of blight. See Reply Brief for
Petitioners 8. The public use described in Berman extended beyond that
to encompass the purpose of developing that area to create conditions that
would prevent a reversion to blight in the future. See 348 U. S., at 34–35
(“It was not enough, [the experts] believed, to remove existing buildings
that were insanitary or unsightly. It was important to redesign the whole
area so as to eliminate the conditions that cause slums. . . . The entire area
needed redesigning so that a balanced, integrated plan could be developed
for the region, including not only new homes, but also schools, churches,
parks, streets, and shopping centers. In this way it was hoped that the

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
485 Cite as: 545 U. S. 469 (2005)
Opinion of the Court
we upheld the interest in breaking up a land oligopoly that
“created artificial deterrents to the normal functioning of the
State’s residential land market,” 467 U. S., at 242; and in
Monsanto, we accepted Congress’ purpose of eliminating a
“significant barrier to entry in the pesticide market,” 467
U. S., at 1014–1015. It would be incongruous to hold that
the City’s interest in the economic benefits to be derived
from the development of the Fort Trumbull area has less
of a public character than any of those other interests.
Clearly, there is no basis for exempting economic develop
ment from our traditionally broad understanding of public
purpose.
Petitioners contend that using eminent domain for eco
nomic development impermissibly blurs the boundary be
tween public and private takings. Again, our cases fore
close this objection. Quite simply, the government’s pursuit
of a public purpose will often benefit individual private
parties. For example, in Midkiff, the forced transfer of
property conferred a direct and significant benefit on those
lessees who were previously unable to purchase their homes.
In Monsanto, we recognized that the “most direct benefici
aries” of the data-sharing provisions were the subsequent
pesticide applicants, but benefiting them in this way was nec
essary to promoting competition in the pesticide market.
467 U. S., at 1014.14 The owner of the department store in
cycle of decay of the area could be controlled and the birth of future slums
prevented”). Had the public use in Berman been defined more narrowly,
it would have been difficult to justify the taking of the plaintiff ’s non
blighted department store.
14 Any number of cases illustrate that the achievement of a public good
often coincides with the immediate benefiting of private parties. See,
e. g., National Railroad Passenger Corporation v. Boston & Maine Corp.,
503 U. S. 407, 422 (1992) (public purpose of “facilitating Amtrak’s rail serv
ice” served by taking rail track from one private company and transferring
it to another private company); Brown v. Legal Foundation of Wash., 538
U. S. 216 (2003) (provision of legal services to the poor is a valid public

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
486 KELO v. NEW LONDON
Opinion of the Court
Berman objected to “taking from one businessman for the
benefit of another businessman,” 348 U. S., at 33, referring
to the fact that under the redevelopment plan land would be
leased or sold to private developers for redevelopment.15
Our rejection of that contention has particular relevance to
the instant case: “The public end may be as well or better
served through an agency of private enterprise than through
a department of government—or so the Congress might con
clude. We cannot say that public ownership is the sole
method of promoting the public purposes of community rede
velopment projects.” Id., at 33–34.16
It is further argued that without a bright-line rule nothing
would stop a city from transferring citizen A’s property to
purpose). It is worth noting that in Hawaii Housing Authority v. Mid
kiff, 467 U. S. 229 (1984), Monsanto, and Boston & Maine Corp., the prop
erty in question retained the same use even after the change of ownership.
15 Notably, as in the instant case, the private developers in Berman were
required by contract to use the property to carry out the redevelopment
plan. See 348 U. S., at 30.
16 Nor do our cases support Justice O’Connor’s novel theory that the
government may only take property and transfer it to private parties
when the initial taking eliminates some “harmful property use.” Post, at
501 (dissenting opinion). There was nothing “harmful” about the non
blighted department store at issue in Berman, 348 U. S. 26; see also n. 13,
supra; nothing “harmful” about the lands at issue in the mining and agri
culture cases, see, e. g., Strickley, 200 U. S. 527; see also nn. 9, 11, supra;
and certainly nothing “harmful” about the trade secrets owned by the
pesticide manufacturers in Monsanto, 467 U. S. 986. In each case, the
public purpose we upheld depended on a private party’s future use of
the concededly nonharmful property that was taken. By focusing on a
property’s future use, as opposed to its past use, our cases are faithful to
the text of the Takings Clause. See U. S. Const., Amdt. 5 (“[N]or shall
private property be taken for public use, without just compensation”).
Justice O’Connor’s intimation that a “public purpose” may not be
achieved by the action of private parties, see post, at 500–501, confuses
the purpose of a taking with its mechanics, a mistake we warned of in
Midkiff, 467 U. S., at 244. See also Berman, 348 U. S., at 33–34 (“The
public end may be as well or better served through an agency of private
enterprise than through a department of government”).

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
487 Cite as: 545 U. S. 469 (2005)
Opinion of the Court
citizen B for the sole reason that citizen B will put the prop
erty to a more productive use and thus pay more taxes.
Such a one-to-one transfer of property, executed outside the
confines of an integrated development plan, is not presented
in this case. While such an unusual exercise of government
power would certainly raise a suspicion that a private pur
pose was afoot,17 the hypothetical cases posited by petition
ers can be confronted if and when they arise.18 They do not
warrant the crafting of an artificial restriction on the concept
of public use.19
Alternatively, petitioners maintain that for takings of this
kind we should require a “reasonable certainty” that the ex
pected public benefits will actually accrue. Such a rule,
however, would represent an even greater departure from
17 Courts have viewed such aberrations with a skeptical eye. See, e. g.,
99 Cents Only Stores v. Lancaster Redevelopment Agency, 237 F. Supp.
2d 1123 (CD Cal. 2001); cf. Cincinnati v. Vester, 281 U. S. 439, 448 (1930)
(taking invalid under state eminent domain statute for lack of a reasoned
explanation). These types of takings may also implicate other constitu
tional guarantees. See Village of Willowbrook v. Olech, 528 U. S. 562
(2000) (per curiam).
18 Cf. Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218, 223
(1928) (Holmes, J., dissenting) (“The power to tax is not the power to de
stroy while this Court sits”).
19 A parade of horribles is especially unpersuasive in this context, since
the Takings Clause largely “operates as a conditional limitation, permit
ting the government to do what it wants so long as it pays the charge.”
Eastern Enterprises v. Apfel, 524 U. S. 498, 545 (1998) (Kennedy, J., con
curring in judgment and dissenting in part). Speaking of the takings
power, Justice Iredell observed that “[i]t is not sufficient to urge, that the
power may be abused, for, such is the nature of all power,—such is the
tendency of every human institution: and, it might as fairly be said, that
the power of taxation, which is only circumscribed by the discretion of the
Body, in which it is vested, ought not to be granted, because the Legisla
ture, disregarding its true objects, might, for visionary and useless proj
ects, impose a tax to the amount of nineteen shillings in the pound. We
must be content to limit power where we can, and where we cannot, con
sistently with its use, we must be content to repose a salutory confidence.”
Calder, 3 Dall., at 400 (opinion concurring in result).

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
488 KELO v. NEW LONDON
Opinion of the Court
our precedent. “When the legislature’s purpose is legiti
mate and its means are not irrational, our cases make clear
that empirical debates over the wisdom of takings—no less
than debates over the wisdom of other kinds of socioeco
nomic legislation—are not to be carried out in the federal
courts.” Midkiff, 467 U. S., at 242–243.20 Indeed, earlier
this Term we explained why similar practical concerns
(among others) undermined the use of the “substantially ad
vances” formula in our regulatory takings doctrine. See
Lingle v. Chevron U. S. A. Inc., 544 U. S. 528, 544 (2005) (not
ing that this formula “would empower—and might often re
quire—courts to substitute their predictive judgments for
those of elected legislatures and expert agencies”). The dis
advantages of a heightened form of review are especially
pronounced in this type of case. Orderly implementation of
a comprehensive redevelopment plan obviously requires that
the legal rights of all interested parties be established before
new construction can be commenced. A constitutional rule
that required postponement of the judicial approval of every
condemnation until the likelihood of success of the plan had
been assured would unquestionably impose a significant
impediment to the successful consummation of many such
plans.
Just as we decline to second-guess the City’s considered
judgments about the efficacy of its development plan, we also
decline to second-guess the City’s determinations as to what
20 See also Boston & Maine Corp., 503 U. S., at 422–423 (“[W]e need
not make a specific factual determination whether the condemnation will
accomplish its objectives”); Monsanto, 467 U. S., at 1015, n. 18 (“Monsanto
argues that EPA and, by implication, Congress, misapprehended the true
‘barriers to entry’ in the pesticide industry and that the challenged provi
sions of the law create, rather than reduce, barriers to entry. . . . Such
economic arguments are better directed to Congress. The proper inquiry
before this Court is not whether the provisions in fact will accomplish
their stated objectives. Our review is limited to determining that the
purpose is legitimate and that Congress rationally could have believed
that the provisions would promote that objective”).

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
489 Cite as: 545 U. S. 469 (2005)
Opinion of the Court
lands it needs to acquire in order to effectuate the project.
“It is not for the courts to oversee the choice of the boundary
line nor to sit in review on the size of a particular project
area. Once the question of the public purpose has been de
cided, the amount and character of land to be taken for the
project and the need for a particular tract to complete the
integrated plan rests in the discretion of the legislative
branch.” Berman, 348 U. S., at 35–36.
In affirming the City’s authority to take petitioners’ prop
erties, we do not minimize the hardship that condemnations
may entail, notwithstanding the payment of just compensa
tion.21 We emphasize that nothing in our opinion precludes
any State from placing further restrictions on its exercise
of the takings power. Indeed, many States already impose
“public use” requirements that are stricter than the federal
baseline. Some of these requirements have been estab
lished as a matter of state constitutional law,22 while others
are expressed in state eminent domain statutes that care
fully limit the grounds upon which takings may be exer
cised.23 As the submissions of the parties and their amici
make clear, the necessity and wisdom of using eminent do
main to promote economic development are certainly mat
ters of legitimate public debate.24 This Court’s authority,
21 The amici raise questions about the fairness of the measure of just
compensation. See, e. g., Brief for American Planning Association et al.
as Amici Curiae 26–30. While important, these questions are not before
us in this litigation.
22 See, e. g., County of Wayne v. Hathcock, 471 Mich. 445, 684 N. W. 2d
765 (2004).
23 Under California law, for instance, a city may only take land for eco
nomic development purposes in blighted areas. Cal. Health & Safety
Code Ann. §§ 33030–33037 (West 1999). See, e. g., Redevelopment Agency
of Chula Vista v. Rados Bros., 95 Cal. App. 4th 309, 115 Cal. Rptr. 2d
234 (2002).
24 For example, some argue that the need for eminent domain has been
greatly exaggerated because private developers can use numerous tech
niques, including secret negotiations or precommitment strategies, to
overcome holdout problems and assemble lands for genuinely profitable

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
490 KELO v. NEW LONDON
Kennedy, J., concurring
however, extends only to determining whether the City’s
proposed condemnations are for a “public use” within the
meaning of the Fifth Amendment to the Federal Constitu
tion. Because over a century of our case law interpreting
that provision dictates an affirmative answer to that ques
tion, we may not grant petitioners the relief that they seek.
The judgment of the Supreme Court of Connecticut is
affirmed.
It is so ordered.
Justice Kennedy, concurring.
I join the opinion for the Court and add these further
observations.
This Court has declared that a taking should be upheld as
consistent with the Public Use Clause, U. S. Const., Amdt. 5,
as long as it is “rationally related to a conceivable public
purpose.” Hawaii Housing Authority v. Midkiff, 467 U. S.
229, 241 (1984); see also Berman v. Parker, 348 U. S. 26
(1954). This deferential standard of review echoes the
rational-basis test used to review economic regulation under
the Due Process and Equal Protection Clauses, see, e. g.,
FCC v. Beach Communications, Inc., 508 U. S. 307, 313–314
(1993); Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483
(1955). The determination that a rational-basis standard of
review is appropriate does not, however, alter the fact that
transfers intended to confer benefits on particular, favored
private entities, and with only incidental or pretextual public
benefits, are forbidden by the Public Use Clause.
projects. See Brief for Jane Jacobs as Amicus Curiae 13–15; see also
Brief for John Norquist as Amicus Curiae. Others argue to the contrary,
urging that the need for eminent domain is especially great with regard
to older, small cities like New London, where centuries of development
have created an extreme overdivision of land and thus a real market im
pediment to land assembly. See Brief for Connecticut Conference of Mu
nicipalities et al. as Amici Curiae 13, 21; see also Brief for National
League of Cities et al. as Amici Curiae.

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
491 Cite as: 545 U. S. 469 (2005)
Kennedy, J., concurring
A court applying rational-basis review under the Public
Use Clause should strike down a taking that, by a clear
showing, is intended to favor a particular private party, with
only incidental or pretextual public benefits, just as a court
applying rational-basis review under the Equal Protection
Clause must strike down a government classification that is
clearly intended to injure a particular class of private par
ties, with only incidental or pretextual public justifications.
See Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432,
446–447, 450 (1985); Department of Agriculture v. Moreno,
413 U. S. 528, 533–536 (1973). As the trial court in this case
was correct to observe: “Where the purpose [of a taking] is
economic development and that development is to be carried
out by private parties or private parties will be benefited,
the court must decide if the stated public purpose—economic
advantage to a city sorely in need of it—is only incidental
to the benefits that will be confined on private parties of a
development plan.” App. to Pet. for Cert. 263. See also
ante, at 477–478.
A court confronted with a plausible accusation of imper
missible favoritism to private parties should treat the objec
tion as a serious one and review the record to see if it has
merit, though with the presumption that the government’s
actions were reasonable and intended to serve a public pur
pose. Here, the trial court conducted a careful and exten
sive inquiry into “whether, in fact, the development plan is
of primary benefit to . . . the developer [i. e., Corcoran Jenni
son], and private businesses which may eventually locate in
the plan area [e. g., Pfizer], and in that regard, only of inciden
tal benefit to the city.” App. to Pet. for Cert. 261. The
trial court considered testimony from government officials
and corporate officers, id., at 266–271; documentary evidence
of communications between these parties, ibid.; respondents’
awareness of New London’s depressed economic condition
and evidence corroborating the validity of this concern, id.,
at 272–273, 278–279; the substantial commitment of public

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
492 KELO v. NEW LONDON
Kennedy, J., concurring
funds by the State to the development project before most
of the private beneficiaries were known, id., at 276; evidence
that respondents reviewed a variety of development plans
and chose a private developer from a group of applicants
rather than picking out a particular transferee beforehand,
id., at 273, 278; and the fact that the other private beneficiar
ies of the project are still unknown because the office space
proposed to be built has not yet been rented, id., at 278.
The trial court concluded, based on these findings, that
benefiting Pfizer was not “the primary motivation or effect
of this development plan”; instead, “the primary motivation
for [respondents] was to take advantage of Pfizer’s pres
ence.” Id., at 276. Likewise, the trial court concluded that
“[t]here is nothing in the record to indicate that . . . [respond
ents] were motivated by a desire to aid [other] particular
private entities.” Id., at 278. See also ante, at 478. Even
the dissenting justices on the Connecticut Supreme Court
agreed that respondents’ development plan was intended to
revitalize the local economy, not to serve the interests of
Pfizer, Corcoran Jennison, or any other private party. 268
Conn. 1, 159, 843 A. 2d 500, 595 (2004) (Zarella, J., concurring
in part and dissenting in part). This case, then, survives the
meaningful rational-basis review that in my view is required
under the Public Use Clause.
Petitioners and their amici argue that any taking justified
by the promotion of economic development must be treated
by the courts as per se invalid, or at least presumptively
invalid. Petitioners overstate the need for such a rule, how
ever, by making the incorrect assumption that review under
Berman and Midkiff imposes no meaningful judicial limits
on the government’s power to condemn any property it likes.
A broad per se rule or a strong presumption of invalidity,
furthermore, would prohibit a large number of government
takings that have the purpose and expected effect of confer
ring substantial benefits on the public at large and so do not
offend the Public Use Clause.

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
493 Cite as: 545 U. S. 469 (2005)
Kennedy, J., concurring
My agreement with the Court that a presumption of inva
lidity is not warranted for economic development takings in
general, or for the particular takings at issue in this case,
does not foreclose the possibility that a more stringent
standard of review than that announced in Berman and Mid
kiff might be appropriate for a more narrowly drawn cate
gory of takings. There may be private transfers in which
the risk of undetected impermissible favoritism of private
parties is so acute that a presumption (rebuttable or other
wise) of invalidity is warranted under the Public Use Clause.
Cf. Eastern Enterprises v. Apfel, 524 U. S. 498, 549–550
(1998) (Kennedy, J., concurring in judgment and dissent
ing in part) (heightened scrutiny for retroactive legislation
under the Due Process Clause). This demanding level of
scrutiny, however, is not required simply because the pur
pose of the taking is economic development.
This is not the occasion for conjecture as to what sort of
cases might justify a more demanding standard, but it is
appropriate to underscore aspects of the instant case that
convince me no departure from Berman and Midkiff is ap
propriate here. This taking occurred in the context of a
comprehensive development plan meant to address a serious
citywide depression, and the projected economic benefits of
the project cannot be characterized as de minimis. The
identities of most of the private beneficiaries were unknown
at the time the city formulated its plans. The city complied
with elaborate procedural requirements that facilitate re
view of the record and inquiry into the city’s purposes. In
sum, while there may be categories of cases in which the
transfers are so suspicious, or the procedures employed so
prone to abuse, or the purported benefits are so trivial or
implausible, that courts should presume an impermissible
private purpose, no such circumstances are present in this
case.
* * *
For the foregoing reasons, I join in the Court’s opinion.

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
494 KELO v. NEW LONDON
O’Connor, J., dissenting
Justice O’Connor, with whom The Chief Justice, Jus
tice Scalia, and Justice Thomas join, dissenting.
Over two centuries ago, just after the Bill of Rights was
ratified, Justice Chase wrote:
“An act of the Legislature (for I cannot call it a law)
contrary to the great first principles of the social com
pact, cannot be considered a rightful exercise of legisla
tive authority. . . . A few instances will suffice to explain
what I mean. . . . [A] law that takes property from A.
and gives it to B: It is against all reason and justice, for a
people to entrust a Legislature with such powers; and,
therefore, it cannot be presumed that they have done it.”
Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).
Today the Court abandons this long-held, basic limitation on
government power. Under the banner of economic develop
ment, all private property is now vulnerable to being taken
and transferred to another private owner, so long as it might
be upgraded—i. e., given to an owner who will use it in a way
that the legislature deems more beneficial to the public—in
the process. To reason, as the Court does, that the inciden
tal public benefits resulting from the subsequent ordinary
use of private property render economic development tak
ings “for public use” is to wash out any distinction between
private and public use of property—and thereby effectively
to delete the words “for public use” from the Takings Clause
of the Fif th Amendment. Accordingly I respectfully
dissent.
I
Petitioners are nine resident or investment owners of 15
homes in the Fort Trumbull neighborhood of New London,
Connecticut. Petitioner Wilhelmina Dery, for example, lives
in a house on Walbach Street that has been in her family
for over 100 years. She was born in the house in 1918; her
husband, petitioner Charles Dery, moved into the house
when they married in 1946. Their son lives next door with

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
495 Cite as: 545 U. S. 469 (2005)
O’Connor, J., dissenting
his family in the house he received as a wedding gift, and
joins his parents in this suit. Two petitioners keep rental
properties in the neighborhood.
In February 1998, Pfizer Inc., the pharmaceuticals manu
facturer, announced that it would build a global research fa
cility near the Fort Trumbull neighborhood. Two months
later, New London’s city council gave initial approval for the
New London Development Corporation (NLDC) to prepare
the development plan at issue here. The NLDC is a private,
nonprofit corporation whose mission is to assist the city coun
cil in economic development planning. It is not elected by
popular vote, and its directors and employees are privately
appointed. Consistent with its mandate, the NLDC gener
ated an ambitious plan for redeveloping 90 acres of Fort
Trumbull in order to “complement the facility that Pfizer was
planning to build, create jobs, increase tax and other reve
nues, encourage public access to and use of the city’s water
front, and eventually ‘build momentum’ for the revitalization
of the rest of the city.” App. to Pet. for Cert. 5.
Petitioners own properties in two of the plan’s seven par
cels—Parcel 3 and Parcel 4A. Under the plan, Parcel 3 is
slated for the construction of research and office space as a
market develops for such space. It will also retain the exist
ing Italian Dramatic Club (a private cultural organization)
though the homes of three plaintiffs in that parcel are to
be demolished. Parcel 4A is slated, mysteriously, for “ ‘park
support.’ ” Id., at 345–346. At oral argument, counsel for
respondents conceded the vagueness of this proposed use,
and offered that the parcel might eventually be used for
parking. Tr. of Oral Arg. 36.
To save their homes, petitioners sued New London and the
NLDC, to whom New London has delegated eminent domain
power. Petitioners maintain that the Fifth Amendment
prohibits the NLDC from condemning their properties for
the sake of an economic development plan. Petitioners are
not holdouts; they do not seek increased compensation, and

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
496 KELO v. NEW LONDON
O’Connor, J., dissenting
none is opposed to new development in the area. Theirs is
an objection in principle: They claim that the NLDC’s pro
posed use for their confiscated property is not a “public” one
for purposes of the Fifth Amendment. While the govern
ment may take their homes to build a road or a railroad or
to eliminate a property use that harms the public, say peti
tioners, it cannot take their property for the private use of
other owners simply because the new owners may make
more productive use of the property.
II
The Fifth Amendment to the Constitution, made applica
ble to the States by the Fourteenth Amendment, provides
that “private property [shall not] be taken for public use,
without just compensation.” When interpreting the Consti
tution, we begin with the unremarkable presumption that
every word in the document has independent meaning, “that
no word was unnecessarily used, or needlessly added.”
Wright v. United States, 302 U. S. 583, 588 (1938). In keep
ing with that presumption, we have read the Fifth Amend
ment’s language to impose two distinct conditions on the ex
ercise of eminent domain: “[T]he taking must be for a ‘public
use’ and ‘just compensation’ must be paid to the owner.”
Brown v. Legal Foundation of Wash., 538 U. S. 216, 231–
232 (2003).
These two limitations serve to protect “the security of
Property,” which Alexander Hamilton described to the Phil
adelphia Convention as one of the “great obj[ects] of Gov[ern
ment].” 1 Records of the Federal Convention of 1787, p. 302
(M. Farrand ed. 1911). Together they ensure stable prop
erty ownership by providing safeguards against excessive,
unpredictable, or unfair use of the government’s eminent do
main power—particularly against those owners who, for
whatever reasons, may be unable to protect themselves in
the political process against the majority’s will.

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
497 Cite as: 545 U. S. 469 (2005)
O’Connor, J., dissenting
While the Takings Clause presupposes that government
can take private property without the owner’s consent, the
just compensation requirement spreads the cost of condem
nations and thus “prevents the public from loading upon one
individual more than his just share of the burdens of govern
ment.” Monongahela Nav. Co. v. United States, 148 U. S.
312, 325 (1893); see also Armstrong v. United States, 364
U. S. 40, 49 (1960). The public use requirement, in turn, im
poses a more basic limitation, circumscribing the very scope
of the eminent domain power: Government may compel an
individual to forfeit her property for the public’s use, but not
for the benefit of another private person. This requirement
promotes fairness as well as security. Cf. Tahoe-Sierra
Preservation Council, Inc. v. Tahoe Regional Planning
Agency, 535 U. S. 302, 336 (2002) (“The concepts of ‘fairness
and justice’ . . . underlie the Takings Clause”).
Where is the line between “public” and “private” property
use? We give considerable deference to legislatures’ deter
minations about what governmental activities will advantage
the public. But were the political branches the sole arbiters
of the public-private distinction, the Public Use Clause
would amount to little more than hortatory fluff. An exter
nal, judicial check on how the public use requirement is inter
preted, however limited, is necessary if this constraint on
government power is to retain any meaning. See Cincin
nati v. Vester, 281 U. S. 439, 446 (1930) (“It is well established
that . . . the question [of] what is a public use is a judicial
one”).
Our cases have generally identified three categories of tak
ings that comply with the public use requirement, though it
is in the nature of things that the boundaries between these
categories are not always firm. Two are relatively straight
forward and uncontroversial. First, the sovereign may
transfer private property to public ownership—such as for a
road, a hospital, or a military base. See, e. g., Old Dominion

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
498 KELO v. NEW LONDON
O’Connor, J., dissenting
Land Co. v. United States, 269 U. S. 55 (1925); Rindge Co. v.
County of Los Angeles, 262 U. S. 700 (1923). Second, the
sovereign may transfer private property to private parties,
often common carriers, who make the property available for
the public’s use—such as with a railroad, a public utility, or
a stadium. See, e. g., National Railroad Passenger Corpo
ration v. Boston & Maine Corp., 503 U. S. 407 (1992); Mt.
Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate
Power Co., 240 U. S. 30 (1916). But “public ownership” and
“use-by-the-public” are sometimes too constricting and im
practical ways to define the scope of the Public Use Clause.
Thus we have allowed that, in certain circumstances and to
meet certain exigencies, takings that serve a public purpose
also satisfy the Constitution even if the property is destined
for subsequent private use. See, e. g., Berman v. Parker,
348 U. S. 26 (1954); Hawaii Housing Authority v. Midkiff,
467 U. S. 229 (1984).
This case returns us for the first time in over 20 years to
the hard question of when a purportedly “public purpose”
taking meets the public use requirement. It presents an
issue of first impression: Are economic development takings
constitutional? I would hold that they are not. We are
guided by two precedents about the taking of real property
by eminent domain. In Berman, we upheld takings within
a blighted neighborhood of Washington, D. C. The neigh
borhood had so deteriorated that, for example, 64.3% of its
dwellings were beyond repair. 348 U. S., at 30. It had be
come burdened with “overcrowding of dwellings,” “lack of
adequate streets and alleys,” and “lack of light and air.” Id.,
at 34. Congress had determined that the neighborhood had
become “injurious to the public health, safety, morals, and
welfare” and that it was necessary to “eliminat[e] all such
injurious conditions by employing all means necessary and
appropriate for the purpose,” including eminent domain.
Id., at 28 (internal quotation marks omitted). Mr. Berman’s
department store was not itself blighted. Having approved

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
499 Cite as: 545 U. S. 469 (2005)
O’Connor, J., dissenting
of Congress’ decision to eliminate the harm to the public em
anating from the blighted neighborhood, however, we did not
second-guess its decision to treat the neighborhood as a
whole rather than lot-by-lot. Id., at 34–35; see also Midkiff,
467 U. S., at 244 (“[I]t is only the taking’s purpose, and not
its mechanics, that must pass scrutiny”).
In Midkiff, we upheld a land condemnation scheme in
Hawaii whereby title in real property was taken from lessors
and transferred to lessees. At that time, the State and Fed
eral Governments owned nearly 49% of the State’s land, and
another 47% was in the hands of only 72 private landowners.
Concentration of land ownership was so dramatic that on the
State’s most urbanized island, Oahu, 22 landowners owned
72.5% of the fee simple titles. Id., at 232. The Hawaii Leg
islature had concluded that the oligopoly in land ownership
was “skewing the State’s residential fee simple market, in
flating land prices, and injuring the public tranquility and
welfare,” and therefore enacted a condemnation scheme for
redistributing title. Ibid.
In those decisions, we emphasized the importance of defer
ring to legislative judgments about public purpose. Be
cause courts are ill equipped to evaluate the efficacy of pro
posed legislative initiatives, we rejected as unworkable the
idea of courts’ “ ‘deciding on what is and is not a governmen
tal function and . . . invalidating legislation on the basis of
their view on that question at the moment of decision, a prac
tice which has proved impracticable in other fields.’ ” Id., at
240–241 (quoting United States ex rel. TVA v. Welch, 327
U. S. 546, 552 (1946)); see Berman, supra, at 32 (“[T]he legis
lature, not the judiciary, is the main guardian of the public
needs to be served by social legislation”); see also Lingle v.
Chevron U. S. A. Inc., 544 U. S. 528 (2005). Likewise, we
recognized our inability to evaluate whether, in a given case,
eminent domain is a necessary means by which to pursue the
legislature’s ends. Midkiff, supra, at 242; Berman, supra,
at 33.

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
500 KELO v. NEW LONDON
O’Connor, J., dissenting
Yet for all the emphasis on deference, Berman and Mid
kiff hewed to a bedrock principle without which our public
use jurisprudence would collapse: “A purely private taking
could not withstand the scrutiny of the public use require
ment; it would serve no legitimate purpose of government
and would thus be void.” Midkiff, 467 U. S., at 245; id., at
241 (“[T]he Court’s cases have repeatedly stated that ‘one
person’s property may not be taken for the benefit of another
private person without a justifying public purpose, even
though compensation be paid’ ” (quoting Thompson v. Con
solidated Gas Util. Corp., 300 U. S. 55, 80 (1937))); see also
Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403, 417 (1896).
To protect that principle, those decisions reserved “a role for
courts to play in reviewing a legislature’s judgment of what
constitutes a public use . . . [though] the Court in Berman
made clear that it is ‘an extremely narrow’ one.” Midkiff,
supra, at 240 (quoting Berman, supra, at 32).
The Court’s holdings in Berman and Midkiff were true to
the principle underlying the Public Use Clause. In both
those cases, the extraordinary, precondemnation use of the
targeted property inflicted affirmative harm on society—in
Berman through blight resulting from extreme poverty and
in Midkiff through oligopoly resulting from extreme wealth.
And in both cases, the relevant legislative body had found
that eliminating the existing property use was necessary
to remedy the harm. Berman, supra, at 28–29; Midkiff,
supra, at 232. Thus a public purpose was realized when the
harmful use was eliminated. Because each taking directly
achieved a public benefit, it did not matter that the property
was turned over to private use. Here, in contrast, New
London does not claim that Susette Kelo’s and Wilhelmina
Dery’s well-maintained homes are the source of any social
harm. Indeed, it could not so claim without adopting the
absurd argument that any single-family home that might be
razed to make way for an apartment building, or any church

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
501 Cite as: 545 U. S. 469 (2005)
O’Connor, J., dissenting
that might be replaced with a retail store, or any small busi
ness that might be more lucrative if it were instead part of
a national franchise, is inherently harmful to society and thus
within the government’s power to condemn.
In moving away from our decisions sanctioning the con
demnation of harmful property use, the Court today signifi
cantly expands the meaning of public use. It holds that the
sovereign may take private property currently put to ordi
nary private use, and give it over for new, ordinary private
use, so long as the new use is predicted to generate some
secondary benefit for the public—such as increased tax reve
nue, more jobs, maybe even esthetic pleasure. But nearly
any lawful use of real private property can be said to gener
ate some incidental benefit to the public. Thus, if predicted
(or even guaranteed) positive side effects are enough to ren
der transfer from one private party to another constitutional,
then the words “for public use” do not realistically exclude
any takings, and thus do not exert any constraint on the
eminent domain power.
There is a sense in which this troubling result follows from
errant language in Berman and Midkiff. In discussing
whether takings within a blighted neighborhood were for a
public use, Berman began by observing: “We deal, in other
words, with what traditionally has been known as the police
power.” 348 U. S., at 32. From there it declared that
“[o]nce the object is within the authority of Congress, the
right to realize it through the exercise of eminent domain is
clear.” Id., at 33. Following up, we said in Midkiff that
“[t]he ‘public use’ requirement is coterminous with the scope
of a sovereign’s police powers.” 467 U. S., at 240. This lan
guage was unnecessary to the specific holdings of those deci
sions. Berman and Midkiff simply did not put such lan
guage to the constitutional test, because the takings in those
cases were within the police power but also for “public use”
for the reasons I have described. The case before us now
demonstrates why, when deciding if a taking’s purpose is

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
502 KELO v. NEW LONDON
O’Connor, J., dissenting
constitutional, the police power and “public use” cannot al
ways be equated.
The Court protests that it does not sanction the bare
transfer from A to B for B’s benefit. It suggests two limita
tions on what can be taken after today’s decision. First, it
maintains a role for courts in ferreting out takings whose
sole purpose is to bestow a benefit on the private trans
feree—without detailing how courts are to conduct that com
plicated inquiry. Ante, at 477–478. For his part, Justice
Kennedy suggests that courts may divine illicit purpose by
a careful review of the record and the process by which a
legislature arrived at the decision to take—without specify
ing what courts should look for in a case with different facts,
how they will know if they have found it, and what to do if
they do not. Ante, at 491–492 (concurring opinion). What
ever the details of Justice Kennedy’s as-yet-undisclosed
test, it is difficult to envision anyone but the “stupid
staff[er]” failing it. See Lucas v. South Carolina Coastal
Council, 505 U. S. 1003, 1025–1026, n. 12 (1992). The trouble
with economic development takings is that private benefit
and incidental public benefit are, by definition, merged and
mutually reinforcing. In this case, for example, any boon
for Pfizer or the plan’s developer is difficult to disaggregate
from the promised public gains in taxes and jobs. See App.
to Pet. for Cert. 275–277.
Even if there were a practical way to isolate the motives
behind a given taking, the gesture toward a purpose test is
theoretically flawed. If it is true that incidental public ben
efits from new private use are enough to ensure the “public
purpose” in a taking, why should it matter, as far as the
Fifth Amendment is concerned, what inspired the taking in
the first place? How much the government does or does not
desire to benefit a favored private party has no bearing on
whether an economic development taking will or will not
generate secondary benefit for the public. And whatever
the reason for a given condemnation, the effect is the same

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
503 Cite as: 545 U. S. 469 (2005)
O’Connor, J., dissenting
from the constitutional perspective—private property is
forcibly relinquished to new private ownership.
A second proposed limitation is implicit in the Court’s
opinion. The logic of today’s decision is that eminent do
main may only be used to upgrade—not downgrade—prop
erty. At best this makes the Public Use Clause redundant
with the Due Process Clause, which already prohibits irra
tional government action. See Lingle, 544 U. S. 528. The
Court rightfully admits, however, that the judiciary cannot
get bogged down in predictive judgments about whether the
public will actually be better off after a property transfer.
In any event, this constraint has no realistic import. For
who among us can say she already makes the most produc
tive or attractive possible use of her property? The specter
of condemnation hangs over all property. Nothing is to pre
vent the State from replacing any Motel 6 with a Ritz-
Carlton, any home with a shopping mall, or any farm with a
factory. Cf. Bugryn v. Bristol, 63 Conn. App. 98, 774 A. 2d
1042 (2001) (taking the homes and farm of four owners in
their 70’s and 80’s and giving it to an “industrial park”); 99
Cents Only Stores v. Lancaster Redevelopment Agency, 237
F. Supp. 2d 1123 (CD Cal. 2001) (attempted taking of 99
Cents store to replace with a Costco); Poletown Neighbor
hood Council v. Detroit, 410 Mich. 616, 304 N. W. 2d 455
(1981) (taking a working-class, immigrant community in De
troit and giving it to a General Motors assembly plant), over
ruled by County of Wayne v. Hathcock, 471 Mich. 445, 684
N. W. 2d 765 (2004); Brief for Becket Fund for Religious Lib
erty as Amicus Curiae 4–11 (describing takings of religious
institutions’ properties); Institute for Justice, D. Berliner,
Public Power, Private Gain: A Five-Year, State-by-State Re
port Examining the Abuse of Eminent Domain (2003) (col
lecting accounts of economic development takings).
The Court also puts special emphasis on facts peculiar to
this case: The NLDC’s plan is the product of a relatively
careful deliberative process; it proposes to use eminent do

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
504 KELO v. NEW LONDON
O’Connor, J., dissenting
main for a multipart, integrated plan rather than for isolated
property transfer; it promises an array of incidental benefits
(even esthetic ones), not just increased tax revenue; it comes
on the heels of a legislative determination that New London
is a depressed municipality. See, e. g., ante, at 487 (“[A]
one-to-one transfer of property, executed outside the confines
of an integrated development plan, is not presented in this
case”). Justice Kennedy, too, takes great comfort in these
facts. Ante, at 493 (concurring opinion). But none has
legal significance to blunt the force of today’s holding. If
legislative prognostications about the secondary public bene
fits of a new use can legitimate a taking, there is nothing in
the Court’s rule or in Justice Kennedy’s gloss on that rule
to prohibit property transfers generated with less care, that
are less comprehensive, that happen to result from less elab
orate process, whose only projected advantage is the inci
dence of higher taxes, or that hope to transform an already
prosperous city into an even more prosperous one.
Finally, in a coda, the Court suggests that property own
ers should turn to the States, who may or may not choose to
impose appropriate limits on economic development takings.
Ante, at 489. This is an abdication of our responsibility.
States play many important functions in our system of dual
sovereignty, but compensating for our refusal to enforce
properly the Federal Constitution (and a provision meant to
curtail state action, no less) is not among them.
* * *
It was possible after Berman and Midkiff to imagine un
constitutional transfers from A to B. Those decisions en
dorsed government intervention when private property use
had veered to such an extreme that the public was suffering
as a consequence. Today nearly all real property is suscep
tible to condemnation on the Court’s theory. In the pre
scient words of a dissenter from the infamous decision in
Poletown, “[n]ow that we have authorized local legislative

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
505 Cite as: 545 U. S. 469 (2005)
Thomas, J., dissenting
bodies to decide that a different commercial or industrial use
of property will produce greater public benefits than its pres
ent use, no homeowner’s, merchant’s or manufacturer’s prop
erty, however productive or valuable to its owner, is immune
from condemnation for the benefit of other private interests
that will put it to a ‘higher’ use.” 410 Mich., at 644–645,
304 N. W. 2d, at 464 (opinion of Fitzgerald, J.). This is why
economic development takings “seriously jeopardiz[e] the se
curity of all private property ownership.” Id., at 645, 304
N. W. 2d, at 465 (Ryan, J., dissenting).
Any property may now be taken for the benefit of another
private party, but the fallout from this decision will not be
random. The beneficiaries are likely to be those citizens
with disproportionate influence and power in the political
process, including large corporations and development firms.
As for the victims, the government now has license to trans
fer property from those with fewer resources to those with
more. The Founders cannot have intended this perverse re
sult. “[T]hat alone is a just government,” wrote James
Madison, “which impartially secures to every man, whatever
is his own.” For the National Gazette, Property (Mar. 27,
1792), reprinted in 14 Papers of James Madison 266 (R. Rut
land et al. eds. 1983).
I would hold that the takings in both Parcel 3 and Parcel
4A are unconstitutional, reverse the judgment of the Su
preme Court of Connecticut, and remand for further
proceedings.
Justice Thomas, dissenting.
Long ago, William Blackstone wrote that “the law of the
land . . . postpone[s] even public necessity to the sacred and
inviolable rights of private property.” 1 Commentaries on
the Laws of England 134–135 (1765) (hereinafter Black
stone). The Framers embodied that principle in the Consti
tution, allowing the government to take property not for
“public necessity,” but instead for “public use.” Amdt. 5.

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
506 KELO v. NEW LONDON
Thomas, J., dissenting
Defying this understanding, the Court replaces the Public
Use Clause with a “ ‘[P]ublic [P]urpose’ ” Clause, ante, at
479–480 (or perhaps the “Diverse and Always Evolving
Needs of Society” Clause, ante, at 479 (capitalization added)),
a restriction that is satisfied, the Court instructs, so long as
the purpose is “legitimate” and the means “not irrational,”
ante, at 488 (internal quotation marks omitted). This defer
ential shift in phraseology enables the Court to hold, against
all common sense, that a costly urban-renewal project whose
stated purpose is a vague promise of new jobs and increased
tax revenue, but which is also suspiciously agreeable to the
Pfizer Corporation, is for a “public use.”
I cannot agree. If such “economic development” takings
are for a “public use,” any taking is, and the Court has erased
the Public Use Clause from our Constitution, as Justice
O’Connor powerfully argues in dissent. Ante, at 494, 501–
505. I do not believe that this Court can eliminate liberties
expressly enumerated in the Constitution and therefore join
her dissenting opinion. Regrettably, however, the Court’s
error runs deeper than this. Today’s decision is simply the
latest in a string of our cases construing the Public Use
Clause to be a virtual nullity, without the slightest nod to
its original meaning. In my view, the Public Use Clause,
originally understood, is a meaningful limit on the govern
ment’s eminent domain power. Our cases have strayed from
the Clause’s original meaning, and I would reconsider them.
I
The Fifth Amendment provides:
“No person shall be held to answer for a capital, or oth
erwise infamous crime, unless on a presentment or in
dictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put
in jeopardy of life or limb, nor shall be compelled in any

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
507 Cite as: 545 U. S. 469 (2005)
Thomas, J., dissenting
criminal case to be a witness against himself, nor be de
prived of life, liberty, or property, without due process
of law; nor shall private property be taken for public
use, without just compensation.” (Emphasis added.)
It is the last of these liberties, the Takings Clause, that is at
issue in this case. In my view, it is “imperative that the
Court maintain absolute fidelity to” the Clause’s express
limit on the power of the government over the individual, no
less than with every other liberty expressly enumerated in
the Fifth Amendment or the Bill of Rights more generally.
Shepard v. United States, 544 U. S. 13, 28 (2005) (Thomas,
J., concurring in part and concurring in judgment) (internal
quotation marks omitted).
Though one component of the protection provided by the
Takings Clause is that the government can take private
property only if it provides “just compensation” for the tak
ing, the Takings Clause also prohibits the government from
taking property except “for public use.” Were it otherwise,
the Takings Clause would either be meaningless or empty.
If the Public Use Clause served no function other than to
state that the government may take property through its
eminent domain power—for public or private uses—then it
would be surplusage. See ante, at 496 (O’Connor, J., dis
senting); see also Marbury v. Madison, 1 Cranch 137, 174
(1803) (“It cannot be presumed that any clause in the consti
tution is intended to be without effect”); Myers v. United
States, 272 U. S. 52, 151 (1926). Alternatively, the Clause
could distinguish those takings that require compensation
from those that do not. That interpretation, however,
“would permit private property to be taken or appropriated
for private use without any compensation whatever.” Cole
v. La Grange, 113 U. S. 1, 8 (1885) (interpreting same lan
guage in the Missouri Public Use Clause). In other words,
the Clause would require the government to compensate for
takings done “for public use,” leaving it free to take property
for purely private uses without the payment of compensa

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
508 KELO v. NEW LONDON
Thomas, J., dissenting
tion. This would contradict a bedrock principle well estab
lished by the time of the founding: that all takings required
the payment of compensation. 1 Blackstone 135; 2 J. Kent,
Commentaries on American Law 275 (1827) (hereinafter
Kent); For the National Gazette, Property (Mar. 27, 1792), in
14 Papers of James Madison 266, 267 (R. Rutland et al. eds.
1983) (arguing that no property “shall be taken directly even
for public use without indemnification to the owner”).1 The
Public Use Clause, like the Just Compensation Clause, is
therefore an express limit on the government’s power of emi
nent domain.
The most natural reading of the Clause is that it allows
the government to take property only if the government
owns, or the public has a legal right to use, the property,
as opposed to taking it for any public purpose or necessity
whatsoever. At the time of the founding, dictionaries pri
marily defined the noun “use” as “[t]he act of employing any
thing to any purpose.” 2 S. Johnson, A Dictionary of the
English Language 2194 (4th ed. 1773) (hereinafter Johnson).
The term “use,” moreover, “is from the Latin utor, which
means ‘to use, make use of, avail one’s self of, employ, apply,
enjoy, etc.” J. Lewis, Law of Eminent Domain § 165, p. 224,
n. 4 (1888) (hereinafter Lewis). When the government
takes property and gives it to a private individual, and the
public has no right to use the property, it strains language
to say that the public is “employing” the property, regardless
of the incidental benefits that might accrue to the public from
the private use. The term “public use,” then, means that
either the government or its citizens as a whole must actu
1 Some state constitutions at the time of the founding lacked just com
pensation clauses and took property even without providing compensation.
See Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1056–1057
(1992) (Blackmun, J., dissenting). The Framers of the Fifth Amendment
apparently disagreed, for they expressly prohibited uncompensated tak
ings, and the Fifth Amendment was not incorporated against the States
until much later. See id., at 1028, n. 15.

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
509 Cite as: 545 U. S. 469 (2005)
Thomas, J., dissenting
ally “employ” the taken property. See id., at 223 (reviewing
founding-era dictionaries).
Granted, another sense of the word “use” was broader in
meaning, extending to “[c]onvenience” or “help,” or “[q]uali
ties that make a thing proper for any purpose.” 2 Johnson
2194. Nevertheless, read in context, the term “public use”
possesses the narrower meaning. Elsewhere, the Constitu
tion twice employs the word “use,” both times in its nar
rower sense. Claeys, Public-Use Limitations and Natural
Property Rights, 2004 Mich. St. L. Rev. 877, 897 (hereinafter
Public Use Limitations). Article I, § 10, provides that “the
net Produce of all Duties and Imposts, laid by any State on
Imports or Exports, shall be for the Use of the Treasury of
the United States,” meaning the Treasury itself will control
the taxes, not use it to any beneficial end. And Article I,
§ 8, grants Congress power “[t]o raise and support Armies,
but no Appropriation of Money to that Use shall be for a
longer Term than two Years.” Here again, “use” means
“employed to raise and support Armies,” not anything di
rected to achieving any military end. The same word in the
Public Use Clause should be interpreted to have the same
meaning.
Tellingly, the phrase “public use” contrasts with the very
different phrase “general Welfare” used elsewhere in the
Constitution. See ibid. (“Congress shall have Power To
. . . provide for the common Defence and general Welfare
of the United States”); preamble (Constitution established
“to promote the general Welfare”). The Framers would
have used some such broader term if they had meant the
Public Use Clause to have a similarly sweeping scope.
Other founding-era documents made the contrast between
these two usages still more explicit. See Sales, Classical
Republicanism and the Fifth Amendment’s “Public Use” Re
quirement, 49 Duke L. J. 339, 367–368 (1999) (hereinafter
Sales) (noting contrast between, on the one hand, the term
“public use” used by 6 of the first 13 States and, on the other,

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
510 KELO v. NEW LONDON
Thomas, J., dissenting
the terms “public exigencies” employed in the Massachusetts
Bill of Rights and the Northwest Ordinance, and the term
“public necessity” used in the Vermont Constitution of 1786).
The Constitution’s text, in short, suggests that the Takings
Clause authorizes the taking of property only if the public
has a right to employ it, not if the public realizes any conceiv
able benefit from the taking.
The Constitution’s common-law background reinforces this
understanding. The common law provided an express
method of eliminating uses of land that adversely impacted
the public welfare: nuisance law. Blackstone and Kent, for
instance, both carefully distinguished the law of nuisance
from the power of eminent domain. Compare 1 Blackstone
135 (noting government’s power to take private property
with compensation) with 3 id., at 216 (noting action to rem
edy “public . . . nuisances, which affect the public, and are
an annoyance to all the king’s subjects”); see also 2 Kent
274–276 (distinguishing the two). Blackstone rejected the
idea that private property could be taken solely for purposes
of any public benefit. “So great . . . is the regard of the law
for private property,” he explained, “that it will not author
ize the least violation of it; no, not even for the general good
of the whole community.” 1 Blackstone 135. He continued:
“If a new road . . . were to be made through the grounds of
a private person, it might perhaps be extensively beneficial
to the public; but the law permits no man, or set of men, to
do this without the consent of the owner of the land.” Ibid.
Only “by giving [the landowner] full indemnification” could
the government take property, and even then “[t]he public
[was] now considered as an individual, treating with an indi
vidual for an exchange.” Ibid. When the public took prop
erty, in other words, it took it as an individual buying prop
erty from another typically would: for one’s own use. The
Public Use Clause, in short, embodied the Framers’ under
standing that property is a natural, fundamental right, pro
hibiting the government from “tak[ing] property from A. and

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
511 Cite as: 545 U. S. 469 (2005)
Thomas, J., dissenting
giv[ing] it to B.” Calder v. Bull, 3 Dall. 386, 388 (1798); see
also Wilkinson v. Leland, 2 Pet. 627, 658 (1829); Vanhorne’s
Lessee v. Dorrance, 2 Dall. 304, 311 (CC Pa. 1795).
The public purpose interpretation of the Public Use Clause
also unnecessarily duplicates a similar inquiry required by
the Necessary and Proper Clause. The Takings Clause is a
prohibition, not a grant of power: The Constitution does not
expressly grant the Federal Government the power to take
property for any public purpose whatsoever. Instead, the
Government may take property only when necessary and
proper to the exercise of an expressly enumerated power.
See Kohl v. United States, 91 U. S. 367, 371–372 (1876) (not
ing Federal Government’s power under the Necessary and
Proper Clause to take property “needed for forts, armories,
and arsenals, for navy-yards and light-houses, for custom
houses, post-offices, and court-houses, and for other public
uses”). For a law to be within the Necessary and Proper
Clause, as I have elsewhere explained, it must bear an “obvi
ous, simple, and direct relation” to an exercise of Congress’
enumerated powers, Sabri v. United States, 541 U. S. 600,
613 (2004) (Thomas, J., concurring in judgment), and it must
not “subvert basic principles of ” constitutional design, Gon
zales v. Raich, ante, at 65 (Thomas, J., dissenting). In other
words, a taking is permissible under the Necessary and
Proper Clause only if it serves a valid public purpose. In
terpreting the Public Use Clause likewise to limit the gov
ernment to take property only for sufficiently public pur
poses replicates this inquiry. If this is all the Clause means,
it is, once again, surplusage. See supra, at 507. The Clause
is thus most naturally read to concern whether the property
is used by the public or the government, not whether the
purpose of the taking is legitimately public.
II
Early American eminent domain practice largely bears out
this understanding of the Public Use Clause. This practice

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
512 KELO v. NEW LONDON
Thomas, J., dissenting
concerns state limits on eminent domain power, not the Fifth
Amendment, since it was not until the late 19th century that
the Federal Government began to use the power of eminent
domain, and since the Takings Clause did not even arguably
limit state power until after the passage of the Fourteenth
Amendment. See Note, The Public Use Limitation on Emi
nent Domain: An Advance Requiem, 58 Yale L. J. 599, 599–
600, and nn. 3–4 (1949); Barron ex rel. Tiernan v. Mayor of
Baltimore, 7 Pet. 243, 250–251 (1833) (holding the Takings
Clause inapplicable to the States of its own force). Never
theless, several early state constitutions at the time of the
founding likewise limited the power of eminent domain to
“public uses.” See Sales 367–369, and n. 137 (emphasis de
leted). Their practices therefore shed light on the original
meaning of the same words contained in the Public Use
Clause.
States employed the eminent domain power to provide
quintessentially public goods, such as public roads, toll roads,
ferries, canals, railroads, and public parks. Lewis §§ 166,
168–171, 175, at 227–228, 234–241, 243. Though use of the
eminent domain power was sparse at the time of the found
ing, many States did have so-called Mill Acts, which author
ized the owners of grist mills operated by water power to
flood upstream lands with the payment of compensation to
the upstream landowner. See, e. g., id., § 178, at 245–246;
Head v. Amoskeag Mfg. Co., 113 U. S. 9, 16–19, and n. (1885).
Those early grist mills “were regulated by law and com
pelled to serve the public for a stipulated toll and in regular
order,” and therefore were actually used by the public.
Lewis § 178, at 246, and n. 3; see also Head, supra, at 18–19.
They were common carriers—quasi-public entities. These
were “public uses” in the fullest sense of the word, because
the public could legally use and benefit from them equally.
See Public Use Limitations 903 (common-carrier status tra
ditionally afforded to “private beneficiaries of a state fran

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
513 Cite as: 545 U. S. 469 (2005)
Thomas, J., dissenting
chise or another form of state monopoly, or to companies that
operated in conditions of natural monopoly”).
To be sure, some early state legislatures tested the limits
of their state-law eminent domain power. Some States
enacted statutes allowing the taking of property for the pur
pose of building private roads. See Lewis § 167, at 230.
These statutes were mixed; some required the private land
owner to keep the road open to the public, and others did
not. See id., § 167, at 230–234. Later in the 19th century,
moreover, the Mill Acts were employed to grant rights to
private manufacturing plants, in addition to grist mills that
had common-carrier duties. See, e. g., M. Horwitz, The
Transformation of American Law 1780–1860, pp. 51–52
(1977).
These early uses of the eminent domain power are often
cited as evidence for the broad “public purpose” interpreta
tion of the Public Use Clause, see, e. g., ante, at 479–480,
n. 8 (majority opinion); Brief for Respondents 30; Brief for
American Planning Assn. et al. as Amici Curiae 6–7, but in
fact the constitutionality of these exercises of eminent do
main power under state public use restrictions was a hotly
contested question in state courts throughout the 19th and
into the 20th century. Some courts construed those clauses
to authorize takings for public purposes, but others adhered
to the natural meaning of “public use.” 2 As noted above,
2 Compare ante, at 479, and n. 8 (majority opinion) (noting that some
state courts upheld the validity of applying the Mill Acts to private pur
poses and arguing that the “ ‘use by the public’ test” “eroded over time”),
with, e. g., Ryerson v. Brown, 35 Mich. 333, 338–339 (1877) (holding it “es
sential” to the constitutionality of a Mill Act “that the statute should re
quire the use to be public in fact; in other words, that it should contain
provisions entitling the public to accommodations”); Gaylord v. Sanitary
Dist. of Chicago, 204 Ill. 576, 581–584, 68 N. E. 522, 524 (1903) (same);
Tyler v. Beacher, 44 Vt. 648, 652–656 (1871) (same); Sadler v. Langham,
34 Ala. 311, 332–334 (1859) (striking down taking for purely private road
and grist mill); Varner v. Martin, 21 W. Va. 534, 546–548, 556–557, 566–567
(1883) (grist mill and private road had to be open to public for them to

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
514 KELO v. NEW LONDON
Thomas, J., dissenting
the earliest Mill Acts were applied to entities with duties to
remain open to the public, and their later extension is not
deeply probative of whether that subsequent practice is con
sistent with the original meaning of the Public Use Clause.
See McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 370
(1995) (Thomas, J., concurring in judgment). At the time of
the founding, “[b]usiness corporations were only beginning
to upset the old corporate model, in which the raison d’eˆ tre
of chartered associations was their service to the public,”
Horwitz, supra, at 49–50, so it was natural to those who
framed the first Public Use Clauses to think of mills as inher
ently public entities. The disagreement among state courts,
and state legislatures’ attempts to circumvent public use lim
its on their eminent domain power, cannot obscure that the
Public Use Clause is most naturally read to authorize tak
ings for public use only if the government or the public actu
ally uses the taken property.
III
Our current Public Use Clause jurisprudence, as the Court
notes, has rejected this natural reading of the Clause. Ante,
at 479–483. The Court adopted its modern reading blindly,
with little discussion of the Clause’s history and original
meaning, in two distinct lines of cases: first, in cases adopting
the “public purpose” interpretation of the Clause, and sec
ond, in cases deferring to legislatures’ judgments regarding
what constitutes a valid public purpose. Those questionable
cases converged in the boundlessly broad and deferential
constitute public use); Harding v. Goodlett, 3 Yer. 41, 53 (Tenn. 1832); Ja
cobs v. Clearview Water Supply Co., 220 Pa. 388, 393–395, 69 A. 870, 872
(1908) (endorsing actual public use standard); Minnesota Canal & Power
Co. v. Koochiching Co., 97 Minn. 429, 449–451, 107 N. W. 405, 413 (1906)
(same); Chesapeake Stone Co. v. Moreland, 126 Ky. 656, 663–667, 104 S. W.
762, 765 (Ct. App. 1907) (same); Note, Public Use in Eminent Domain, 21
N. Y. U. L. Q. Rev. 285, 286, and n. 11 (1946) (calling the actual public use
standard the “majority view” and citing other cases).

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
515 Cite as: 545 U. S. 469 (2005)
Thomas, J., dissenting
conception of “public use” adopted by this Court in Berman
v. Parker, 348 U. S. 26 (1954), and Hawaii Housing Author
ity v. Midkiff, 467 U. S. 229 (1984), cases that take center
stage in the Court’s opinion. See ante, at 480–482. The
weakness of those two lines of cases, and consequently Ber
man and Midkiff, fatally undermines the doctrinal founda
tions of the Court’s decision. Today’s questionable applica
tion of these cases is further proof that the “public purpose”
standard is not susceptible of principled application. This
Court’s reliance by rote on this standard is ill advised and
should be reconsidered.
A
As the Court notes, the “public purpose” interpretation of
the Public Use Clause stems from Fallbrook Irrigation Dist.
v. Bradley, 164 U. S. 112, 161–162 (1896). Ante, at 479–480.
The issue in Bradley was whether a condemnation for pur
poses of constructing an irrigation ditch was for a public use.
164 U. S., at 161. This was a public use, Justice Peckham
declared for the Court, because “[t]o irrigate and thus to
bring into possible cultivation these large masses of other
wise worthless lands would seem to be a public purpose and
a matter of public interest, not confined to landowners, or
even to any one section of the State.” Ibid. That broad
statement was dictum, for the law under review also pro
vided that “[a]ll landowners in the district have the right to
a proportionate share of the water.” Id., at 162. Thus, the
“public” did have the right to use the irrigation ditch because
all similarly situated members of the public—those who
owned lands irrigated by the ditch—had a right to use it.
The Court cited no authority for its dictum, and did not dis
cuss either the Public Use Clause’s original meaning or the
numerous authorities that had adopted the “actual use” test
(though it at least acknowledged the conflict of authority in
state courts, see id., at 158; supra, at 513–514, and n. 2).
Instead, the Court reasoned that “[t]he use must be regarded
as a public use, or else it would seem to follow that no gen

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
516 KELO v. NEW LONDON
Thomas, J., dissenting
eral scheme of irrigation can be formed or carried into ef
fect.” Bradley, supra, at 160–161. This is no statement of
constitutional principle: Whatever the utility of irrigation
districts or the merits of the Court’s view that another rule
would be “impractical given the diverse and always evolving
needs of society,” ante, at 479, the Constitution does not em
body those policy preferences any more than it “enact[s]
Mr. Herbert Spencer’s Social Statics,” Lochner v. New York,
198 U. S. 45, 75 (1905) (Holmes, J., dissenting); but see id., at
58–62 (Peckham, J., for the Court).
This Court’s cases followed Bradley’s test with little analy
sis. In Clark v. Nash, 198 U. S. 361 (1905) (Peckham, J., for
the Court), this Court relied on little more than a citation to
Bradley in upholding another condemnation for the purpose
of laying an irrigation ditch. 198 U. S., at 369–370. As in
Bradley, use of the “public purpose” test was unnecessary to
the result the Court reached. The government condemned
the irrigation ditch for the purpose of ensuring access to
water in which “[o]ther land owners adjoining the defendant
in error . . . might share,” 198 U. S., at 370, and therefore
Clark also involved a condemnation for the purpose of ensur
ing access to a resource to which similarly situated members
of the public had a legal right of access. Likewise, in Strick
ley v. Highland Boy Gold Mining Co., 200 U. S. 527 (1906),
the Court upheld a condemnation establishing an aerial
right-of-way for a bucket line operated by a mining company,
relying on little more than Clark, see Strickley, supra, at
531. This case, too, could have been disposed of on the nar
rower ground that “the plaintiff [was] a carrier for itself and
others,” 200 U. S., at 531–532, and therefore that the bucket
line was legally open to the public. Instead, the Court un
necessarily rested its decision on the “inadequacy of use by
the general public as a universal test.” Id., at 531. This
Court’s cases quickly incorporated the public purpose stand
ard set forth in Clark and Strickley by barren citation. See,

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
517 Cite as: 545 U. S. 469 (2005)
Thomas, J., dissenting
e. g., Rindge Co. v. County of Los Angeles, 262 U. S. 700, 707
(1923); Block v. Hirsh, 256 U. S. 135, 155 (1921); Mt. Vernon-
Woodberry Cotton Duck Co. v. Alabama Interstate Power
Co., 240 U. S. 30, 32 (1916); O’Neill v. Leamer, 239 U. S. 244,
253 (1915).
B
A second line of this Court’s cases also deviated from the
Public Use Clause’s original meaning by allowing legisla
tures to define the scope of valid “public uses.” United
States v. Gettysburg Electric R. Co., 160 U. S. 668 (1896),
involved the question whether Congress’ decision to con
demn certain private land for the purpose of building battle
field memorials at Gettysburg, Pennsylvania, was for a public
use. Id., at 679–680. Since the Federal Government was
to use the lands in question, id., at 682, there is no doubt
that it was a public use under any reasonable standard.
Nonetheless, the Court, speaking through Justice Peckham,
declared that “when the legislature has declared the use or
purpose to be a public one, its judgment will be respected
by the courts, unless the use be palpably without reasonable
foundation.” Id., at 680. As it had with the “public pur
pose” dictum in Bradley, the Court quickly incorporated this
dictum into its Public Use Clause cases with little discussion.
See, e. g., United States ex rel. TVA v. Welch, 327 U. S. 546,
552 (1946); Old Dominion Land Co. v. United States, 269
U. S. 55, 66 (1925).
There is no justification, however, for affording almost in
surmountable deference to legislative conclusions that a use
serves a “public use.” To begin with, a court owes no defer
ence to a legislature’s judgment concerning the quintessen
tially legal question of whether the government owns, or the
public has a legal right to use, the taken property. Even
under the “public purpose” interpretation, moreover, it is
most implausible that the Framers intended to defer to legis
latures as to what satisfies the Public Use Clause, uniquely

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
518 KELO v. NEW LONDON
Thomas, J., dissenting
among all the express provisions of the Bill of Rights. We
would not defer to a legislature’s determination of the vari
ous circumstances that establish, for example, when a search
of a home would be reasonable, see, e. g., Payton v. New
York, 445 U. S. 573, 589–590 (1980), or when a convicted
double-murderer may be shackled during a sentencing pro
ceeding without on-the-record findings, see Deck v. Mis
souri, 544 U. S. 622 (2005), or when state law creates a prop
erty interest protected by the Due Process Clause, see, e. g.,
Castle Rock v. Gonzales, post, at 756–758; Board of Regents
of State Colleges v. Roth, 408 U. S. 564, 576 (1972); Goldberg
v. Kelly, 397 U. S. 254, 262–263 (1970).
Still worse, it is backwards to adopt a searching standard
of constitutional review for nontraditional property inter
ests, such as welfare benefits, see, e. g., Goldberg, supra,
while deferring to the legislature’s determination as to what
constitutes a public use when it exercises the power of emi
nent domain, and thereby invades individuals’ traditional
rights in real property. The Court has elsewhere recog
nized “the overriding respect for the sanctity of the home
that has been embedded in our traditions since the origins
of the Republic,” Payton, supra, at 601, when the issue is
only whether the government may search a home. Yet
today the Court tells us that we are not to “second-guess the
City’s considered judgments,” ante, at 488, when the issue
is, instead, whether the government may take the infinitely
more intrusive step of tearing down petitioners’ homes.
Something has gone seriously awry with this Court’s inter
pretation of the Constitution. Though citizens are safe from
the government in their homes, the homes themselves are
not. Once one accepts, as the Court at least nominally does,
ante, at 477, that the Public Use Clause is a limit on the
eminent domain power of the Federal Government and the
States, there is no justification for the almost complete defer
ence it grants to legislatures as to what satisfies it.

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
519 Cite as: 545 U. S. 469 (2005)
Thomas, J., dissenting
C
These two misguided lines of precedent converged in Ber
man v. Parker, 348 U. S. 26 (1954), and Hawaii Housing Au
thority v. Midkiff, 467 U. S. 229 (1984). Relying on those
lines of cases, the Court in Berman and Midkiff upheld con
demnations for the purposes of slum clearance and land re
distribution, respectively. “Subject to specific constitutional
limitations,” Berman proclaimed, “when the legislature has
spoken, the public interest has been declared in terms well
nigh conclusive. In such cases the legislature, not the judi
ciary, is the main guardian of the public needs to be served
by social legislation.” 348 U. S., at 32. That reasoning was
question begging, since the question to be decided was
whether the “specific constitutional limitation” of the Public
Use Clause prevented the taking of the appellant’s (conced
edly “nonblighted”) department store. Id., at 31, 34. Ber
man also appeared to reason that any exercise by Congress
of an enumerated power (in this case, its plenary power over
the District of Columbia) was per se a “public use” under the
Fifth Amendment. Id., at 33. But the very point of the
Public Use Clause is to limit that power. See supra, at 508.
More fundamentally, Berman and Midkiff erred by equat
ing the eminent domain power with the police power of
States. See Midkiff, supra, at 240 (“The ‘public use’ re
quirement is . . . coterminous with the scope of a sovereign’s
police powers”); Berman, supra, at 32. Traditional uses of
that regulatory power, such as the power to abate a nuisance,
required no compensation whatsoever, see Mugler v. Kansas,
123 U. S. 623, 668–669 (1887), in sharp contrast to the takings
power, which has always required compensation, see supra,
at 508, and n. 1. The question whether the State can take
property using the power of eminent domain is therefore dis
tinct from the question whether it can regulate property pur
suant to the police power. See, e. g., Lucas v. South Caro
lina Coastal Council, 505 U. S. 1003, 1014 (1992); Mugler,

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
520 KELO v. NEW LONDON
Thomas, J., dissenting
supra, at 668–669. In Berman, for example, if the slums at
issue were truly “blighted,” then state nuisance law, see,
e. g., supra, at 510; Lucas, supra, at 1029, not the power of
eminent domain, would provide the appropriate remedy. To
construe the Public Use Clause to overlap with the States’
police power conflates these two categories.3
The “public purpose” test applied by Berman and Midkiff
also cannot be applied in principled manner. “When we de
part from the natural import of the term ‘public use,’ and
substitute for the simple idea of a public possession and occu
pation, that of public utility, public interest, common benefit,
general advantage or convenience . . . we are afloat without
any certain principle to guide us.” Bloodgood v. Mohawk &
Hudson R. Co., 18 Wend. 9, 60–61 (NY 1837) (opinion of
Tracy, Sen.). Once one permits takings for public purposes
in addition to public uses, no coherent principle limits what
could constitute a valid public use—at least, none beyond
Justice O’Connor’s (entirely proper) appeal to the text of
the Constitution itself. See ante, at 494, 501–505 (dissenting
opinion). I share the Court’s skepticism about a public use
standard that requires courts to second-guess the policy wis
dom of public works projects. Ante, at 486–489. The “pub
lic purpose” standard this Court has adopted, however, de
mands the use of such judgment, for the Court concedes that
the Public Use Clause would forbid a purely private taking.
3 Some States also promoted the alienability of property by abolishing
the feudal “quit rent” system, i. e., long-term leases under which the pro
prietor reserved to himself the right to perpetual payment of rents from
his tenant. See Vance, The Quest for Tenure in the United States, 33
Yale L. J. 248, 256–257, 260–263 (1923). In Hawaii Housing Authority v.
Midkiff, 467 U. S. 229 (1984), the Court cited those state policies favoring
the alienability of land as evidence that the government’s eminent domain
power was similarly expansive, see id., at 241–242, and n. 5. But they
were uses of the States’ regulatory power, not the takings power, and
therefore were irrelevant to the issue in Midkiff. This mismatch under
scores the error of conflating a State’s regulatory power with its takings
power.

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
521 Cite as: 545 U. S. 469 (2005)
Thomas, J., dissenting
Ante, at 477–478. It is difficult to imagine how a court could
find that a taking was purely private except by determining
that the taking did not, in fact, rationally advance the public
interest. Cf. ante, at 502–503 (O’Connor, J., dissenting)
(noting the complicated inquiry the Court’s test requires).
The Court is therefore wrong to criticize the “actual use”
test as “difficult to administer.” Ante, at 479. It is far eas
ier to analyze whether the government owns or the public
has a legal right to use the taken property than to ask
whether the taking has a “purely private purpose”—unless
the Court means to eliminate public use scrutiny of takings
entirely. Ante, at 477–478, 488–489. Obliterating a provi
sion of the Constitution, of course, guarantees that it will not
be misapplied.
For all these reasons, I would revisit our Public Use
Clause cases and consider returning to the original meaning
of the Public Use Clause: that the government may take
property only if it actually uses or gives the public a legal
right to use the property.
IV
The consequences of today’s decision are not difficult to
predict, and promise to be harmful. So-called “urban re
newal” programs provide some compensation for the proper
ties they take, but no compensation is possible for the subjec
tive value of these lands to the individuals displaced and the
indignity inflicted by uprooting them from their homes.
Allowing the government to take property solely for public
purposes is bad enough, but extending the concept of public
purpose to encompass any economically beneficial goal guar
antees that these losses will fall disproportionately on poor
communities. Those communities are not only systemati
cally less likely to put their lands to the highest and best
social use, but are also the least politically powerful. If ever
there were justification for intrusive judicial review of con
stitutional provisions that protect “discrete and insular mi
norities,” United States v. Carolene Products Co., 304 U. S.

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
522 KELO v. NEW LONDON
Thomas, J., dissenting
144, 152, n. 4 (1938), surely that principle would apply with
great force to the powerless groups and individuals the Pub
lic Use Clause protects. The deferential standard this
Court has adopted for the Public Use Clause is therefore
deeply perverse. It encourages “those citizens with dispro
portionate influence and power in the political process, in
cluding large corporations and development firms,” to vic
timize the weak. Ante, at 505 (O’Connor, J., dissenting).
Those incentives have made the legacy of this Court’s
“public purpose” test an unhappy one. In the 1950’s, no
doubt emboldened in part by the expansive understanding of
“public use” this Court adopted in Berman, cities “rushed to
draw plans” for downtown development. B. Frieden & L.
Sagalyn, Downtown, Inc. How America Rebuilds Cities 17
(1989). “Of all the families displaced by urban renewal from
1949 through 1963, 63 percent of those whose race was
known were nonwhite, and of these families, 56 percent of
nonwhites and 38 percent of whites had incomes low enough
to qualify for public housing, which, however, was seldom
available to them.” Id., at 28. Public works projects in the
1950’s and 1960’s destroyed predominantly minority commu
nities in St. Paul, Minnesota, and Baltimore, Maryland. Id.,
at 28–29. In 1981, urban planners in Detroit, Michigan, up
rooted the largely “lower-income and elderly” Poletown
neighborhood for the benefit of the General Motors Corpora
tion. J. Wylie, Poletown: Community Betrayed 58 (1989).
Urban renewal projects have long been associated with the
displacement of blacks; “[i]n cities across the country, urban
renewal came to be known as ‘Negro removal.’ ” Pritchett,
The “Public Menace” of Blight: Urban Renewal and the Pri
vate Uses of Eminent Domain, 21 Yale L. & Pol’y Rev. 1, 47
(2003). Over 97 percent of the individuals forcibly removed
from their homes by the “slum-clearance” project upheld by
this Court in Berman were black. 348 U. S., at 30. Re
grettably, the predictable consequence of the Court’s deci
sion will be to exacerbate these effects.

545US2 Unit: $U69 [03-26-08 18:23:07] PAGES PGT: OPIN
523 Cite as: 545 U. S. 469 (2005)
Thomas, J., dissenting
* * *
The Court relies almost exclusively on this Court’s prior
cases to derive today’s far-reaching, and dangerous, result.
See ante, at 479–483. But the principles this Court should
employ to dispose of this case are found in the Public Use
Clause itself, not in Justice Peckham’s high opinion of recla
mation laws, see supra, at 515–516. When faced with a
clash of constitutional principle and a line of unreasoned
cases wholly divorced from the text, history, and structure
of our founding document, we should not hesitate to resolve
the tension in favor of the Constitution’s original meaning.
For the reasons I have given, and for the reasons given in
Justice O’Connor’s dissent, the conflict of principle raised
by this boundless use of the eminent domain power should
be resolved in petitioners’ favor. I would reverse the judg
ment of the Connecticut Supreme Court.