An interesting, albeit anonymous, comment on the recent post criticizing the attempts to breathe some sort of independent life argues that the "'public use' prong is well accounted for in the Constitution already" under a "needfulness" requirement derived from certain clauses of the Article I Section 8 and other parts of the original Constitution, in particular the grant of "Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." Hence, the federal government could only own "needful" buildings, which means the same as property for "public use," and with Incorporation, the same requirement applies to the States.
But that theory hardly accounts for a "public use" prong of the Fifth Amendment:
First, the principal source of the alleged needfulness requirement is Article I, Section 8. But the eighteen clauses of that Section are conjunctive, not disjunctive. That one clause may grant Congress authority over certain "needful Buildings," hardly precludes that other clauses may authorize the federal government to own other non-needful buildings. Even to somebody repelled the currently accepted cancerous interpretation of clause 3, it barely even suggests that this is a limitation on all authority of the federal government.
In fact, I am entirely unfamiliar with any modern case in which a court has denied the federal government the power to own any property because it was not "needful." Case law being what it is, it is conceivable that such exists, but it surely cannot be a common type of claim.
But the factual circumstances for such a case seem difficult to imagine. The federal government, directly or indirectly, owns vast amounts of real estate most of which is devoted to nothing at all except wilderness, which may be nice but surely must be the opposite of "needful."
And what happens if the federal government decides to develop an area and lease the land to a property developer? Is the use needful or is it not? If it is, how would it not be in a federal parallel to Kelo? If it is not, what is the remedy? Is the federal government forced to sell the property to the developer? But is that not what happened in Kelo? Give it back to the original owners, even if the cannot be determined? Or must all federal land be barred from development forever because of the needfulness requirement?
Second, strange as these legal consequences are, things truly get bizarre when one tries to incorporate the "needfulness" requirement against the States. A needfulness requirement arising out of a Constitutional grant of power to Congress is the sort of logical incoherence which makes reverse incorporation appear the model of sound legal reasoning by comparison.
If this part of the original Constitution is incorporated against the States, what other parts can or should be? The requirement for bicameralism? Has anybody told Nebraska? Each state needs its own president? Are state legislatures denied all authority within their borders which Article I Section 8 denies Congress within the United States? If not, why just this one?Or does incorporation of the Article I Section 8 power of Congress give each state all the power of the federal legislature? Incorporating a grant of power, rather than restrictions on power like the Bill of Rights, inevitably leads to such absurd hypotheticals.
Finally, none of this in any way resolves the different problems of deeming the Takings Clause to have a "public use" prong. If a governmental act is a taking for public use, it is permitted with just compensation. If a governmental act is not a taking for public use, the Fifth Amendment (incorporated or not) is entirely silent on the issue and cannot be prohibited by it. Tertii exclusi. One cannot meld together entirely two separate legal theories—public-use prong and needfulness requirement—each of which has unsurmountable logical and textual problems and then pretend that some amalgam of the two is defensible because each part lacks some of the flaws of the other.
