Page:United States Reports, Volume 545.djvu/568



, dissenting e. g., Rindge Co. v. County of Los Angeles,, (1923); Block v. Hirsh, ,  (1921); Mt. Vernon Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., ,  (1916); O’Neill v. Leamer, ,  (1915).

B

A second line of this Court’s cases also deviated from the Public Use Clause’s original meaning by allowing legislatures to deﬁne the scope of valid “public uses.” United States v. Gettysburg Electric R. Co., (1896), involved the question whether Congress’ decision to condemn certain private land for the purpose of building battleﬁeld memorials at Gettysburg, Pennsylvania, was for a public use. Id., –. Since the Federal Government was to use the lands in question, id.,, 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.,. As it had with the “public purpose” 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,, (1946); Old Dominion Land Co. v. United States, ,  (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 deference to a legislature’s judgment concerning the quintessentially 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 legislatures as to what satisﬁes the Public Use Clause, uniquely