Page:United States Reports, Volume 545.djvu/570



, dissenting C

These two misguided lines of precedent converged in Berman v. Parker, (1954), and Hawaii Housing Authority v. Midkiff,  (1984). Relying on those lines of cases, the Court in Berman and Midkiff upheld condemnations for the purposes of slum clearance and land redistribution, 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 judiciary, is the main guardian of the public needs to be served by social legislation.”. 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 (concededly “nonblighted”) department store. Id.,,. Berman 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 equating the eminent domain power with the police power of States. See Midkiff, supra, at 240 (“The ‘public use’ requirement 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,, – (1887), in sharp contrast to the takings power, which has always required compensation, see supra, , and n. 1. The question whether the State can take property using the power of eminent domain is therefore distinct from the question whether it can regulate property pursuant to the police power. See, e. g., Lucas v. South Carolina Coastal Council,, (1992); Mugler,