Assembly, Public Use, and Reciprocity-of-Advantage Regulation

In Kelo v. City of New London (2005), the U.S. Supreme Court signaled that government-sponsored assemblies hardly ever create problems under the Public Use Clause in the Fifth Amendment to the U.S. Constitution. By a 5-4 majority, the Court held that a government takes property for public use when it condemns private property and transfers that property to another private party to produce local economic benefits. That holding was all but required by Court precedent, the majority argued; the eminent-domain power is the only way government can reassemble property.

That argument relies on false dichotomies. In this Article, I argue that government-sponsored assemblies do not need to be takings for public use to be constitutional. In rights-based property theories, the power to sponsor private-to-private transfers and to assemble private property can be authorized instead under the police power, and specifically under the class of police regulations that secure average reciprocities of advantage.

This Article teaches two lessons, one normative and one doctrinal. Normatively, reciprocity-of-advantage doctrine asks more reasonable questions than current doctrine does about whether state-sponsored assembly is justifiable. And doctrinally, this Article offers a roadmap for overhauling contemporary public-use doctrine. The U.S. Supreme Court treated assembly problems as reciprocity-of-advantage problems in the first assembly cases it considered after the Fourteenth Amendment was ratified—Head v. Amoskeag Manufacturing Co. and Wurts v. Hoagland (both 1885), and Ohio Oil Co. v. Indiana (1900). If Head, Wurts, and Ohio Oil Co. are convincing, then the Court’s later assembly cases—from Clark v. Nash (1906), through Berman v. Parker (1954), to Kelo—should be limited or overruled.