The Return described a remedy. The Grounding describes a doctrinal path that enables it.

The chartered covenant proposed in The Return rests on constitutional building blocks that have been in continuous operation for two hundred years and at the Supreme Court for seventy. Those blocks are not novel, not aggressive, and not at the boundary of what American law has tolerated. Those blocks are settled, applied to a structurally familiar problem in a direction they have not yet been used to run. The argument that follows is the legal one The Return gestured at. It is owed its own treatment. It works through five doctrinal moves: the public-use clause as construed across the early republic and three landmark twentieth-century cases; the originalist dissent; Justice Kennedy’s concurrence in Kelo and the limit it places on economic-development takings; the state-action doctrine of Lebron v. Amtrak and its application to the corporate vehicles through which Newburgh’s urban renewal title chain has moved; and the constitutional architectural framework as a whole, viewed from inside title chains. A separate note addresses the operational precedent for the property bifurcation the covenant proposes, drawing on the severed mineral estate and the New York City air-rights regime, both fully administered legal arrangements that have been in routine operation for over a century.

The essay is technical in places. This is unavoidable. What it produces is a single conclusion: there is no doctrinal posture from which an opposition can defeat the chartered covenant without simultaneously defeating the chain of title that produced the parcels they currently hold. That conclusion is what the legal architecture, taken as a whole, asks for.

The Takings Clause and the Public-Use Question

The Fifth Amendment closes with a single declarative sentence on property: “nor shall private property be taken for public use, without just compensation.”¹ The clause has two components. The first is procedural — just compensation — and has been the object of two centuries of valuation litigation that does not concern this essay. The second is the gatekeeping condition: the taking must be for public use. The question of what public use means has been the constitutional fight at the center of every eminent domain controversy in American history, and it is the fight on which the chartered covenant proposal turns.

There are two readings. The narrow reading construes “public use” literally: the public must actually use the property after the taking. A road, a courthouse, a military installation, a public park — these are takings for public use in the strict sense, because the public physically occupies what was taken. The expansive reading construes “public use” as “public purpose”: the taking must serve the public, but the property need not be physically used by the public after the conversion. A taking to clear a slum, to break up a land oligopoly, or to enable economic development of a depressed area can be a taking for public use on the expansive reading even though the property after the taking is held and operated privately.

The Supreme Court adopted the expansive reading in 1954 and has not departed from it since. The narrow reading survives as the position of a minority of justices, principally in Justice Thomas’s Kelo dissent and in originalist scholarship. Whether the narrow reading is correct as a matter of original public meaning is a contested question among historians and legal scholars and one this essay will engage in due course. What is not contested is that the narrow reading is not currently the law.

The constitutional analysis of the chartered covenant therefore proceeds within the doctrinal framework the Court has actually built — the public-purpose framework articulated in Berman v. Parker, extended in Hawaii Housing Authority v. Midkiff, and refined in Kelo v. City of New London, with the limitations introduced by Justice Kennedy’s concurrence in the latter case. Within that framework, the chartered covenant is comfortably constitutional. The argument can also be defended against the originalist critique, which I take up after building out the doctrinal frame.

Mill Acts, Canals, and the Early Republic

The earliest American takings for purposes other than literal public use were the colonial and early-republican Mill Acts, which authorized private mill owners to flood neighbors’ land in order to operate water-powered grist, saw, and iron mills.² Maryland enacted such a statute in 1669; Virginia and the Carolinas followed in the early eighteenth century; Massachusetts maintained Mill Acts from the colonial period through the nineteenth century. The mills were privately owned and privately operated. The neighbors were compensated, often at controlled rates. The public benefit was the availability of milling capacity to local farmers — which most colonial communities considered as essential a public service as the maintenance of roads.

The Mill Acts are claimed by both sides of the modern doctrinal debate, and the claim cuts in both directions. Expansive readers cite the Acts as evidence that the early republic understood “public use” to include economic-development takings for privately operated enterprises that served public purposes. Originalists respond that Chief Justice Lemuel Shaw of Massachusetts, in Boston and Roxbury Mill Corp. v. Newman and the line of cases that followed, characterized the Mill Acts as exercises of police power and regulation of competing private property rights rather than as takings under the eminent domain power.³ On Shaw’s reading, the Mill Acts do not establish anything about the meaning of “public use” because they were not invocations of the takings power at all.

The Mill Acts can therefore be taken to be ambiguous on their own. The stronger early-republican precedent for economic-development takings — the precedent the originalists have a harder time absorbing — is the early nineteenth-century delegation of eminent domain authority to canal companies, turnpike corporations, and railroads.⁴ These were unambiguously takings, conducted under explicit grants of eminent domain authority, and the property taken was conveyed not to the public but to private corporations chartered by state legislatures to operate canals, toll roads, and rail lines on commercial terms. The corporations were privately owned, paid dividends to private shareholders, and operated for profit. The takings were nonetheless held constitutional, as a matter of routine, throughout the antebellum period. Every state that built a canal system did so by delegating eminent domain authority to private corporations; every state that financed early railroad construction did the same. The takings were defended on the ground that the canals, turnpikes, and railroads served a public purpose, even though their physical operation was privately controlled and their economic returns flowed to private investors.

This is the early-republican baseline. By the time the Fourteenth Amendment was ratified in 1868, takings for the benefit of privately operated enterprises serving public purposes had been routine American practice for two generations. The expansive reading of “public use” was not introduced by the Warren Court in 1954. It was the operating assumption of state takings law from the founding generation onward.

The expansive reading was, however, formalized at the federal constitutional level in 1954, in a case arising out of postwar Washington, D.C.

Berman v. Parker (1954)

The District of Columbia Redevelopment Act of 1945 authorized comprehensive slum clearance in the District through the use of eminent domain. The statute permitted the District to assemble parcels by condemnation, clear the assembled land, and convey it to private redevelopers operating under contracts that prescribed the use to which the redeveloped property could be put. The plaintiffs in Berman v. Parker owned a department store on a parcel within a designated redevelopment area. Their store was not blighted. They argued that taking their property — non-blighted property within an area otherwise characterized as blighted — for conveyance to a private redeveloper exceeded the public-use requirement of the Fifth Amendment.

The Supreme Court rejected the argument unanimously.⁵ Justice Douglas, writing for the Court, articulated the public-purpose reading in the language that has structured every subsequent takings case:

The public-use clause was satisfied, Douglas wrote, when the legislature determined that an area required comprehensive redevelopment to serve public health, safety, and welfare; once that determination was made, the legislature was entitled to use whatever instruments it deemed necessary, including transfer of condemned property to private redevelopers, to accomplish the public purpose. The Court declined to second-guess the legislative determination of public purpose. It declined to require that public benefits be achieved through public ownership of the property taken. It declined to treat the inclusion of non-blighted property within a comprehensive redevelopment area as exceeding the takings power. The legislature’s judgment, on Douglas’s analysis, was substantially unreviewable, and the public-use requirement was satisfied as long as the taking was rationally related to a conceivable public purpose.

The doctrinal move was a conscious one and the Court’s opinion was clear about what it was doing. Berman gave the federal urban renewal program — Title I of the Housing Act of 1949, signed into law five years earlier — a constitutional license to operate. Every urban renewal taking executed in the United States between 1954 and the program’s wind-down in the mid-1970s relied on Berman as its doctrinal foundation. The clearance of Newburgh’s waterfront between 1962 and 1973 relied on Berman. The conveyance of the cleared parcels to private holders relied on Berman. The title chain that runs from the Newburgh Urban Renewal Agency (URA) through subsequent transfers to the parties currently holding the cleared ground above the river relies, at its constitutional root, on Berman.

This is the first piece of the constitutional architecture. Whatever the chartered covenant proposes to do, it proposes to do under the same doctrinal authority Berman established. Same statute family. Same constitutional posture. Same blight-and-redevelopment vocabulary. But the direction is reversed.

Hawaii Housing Authority v. Midkiff (1984)

Thirty years after Berman, the Court was asked to evaluate a takings program with a different structural function. The Hawaii Housing Authority Act of 1967 authorized the state to take the fee in residential land from concentrated landowners and convey it to lessees who held long-term leases on the land. The structure was not slum clearance; it was the dismantling of a land oligopoly. The historical context was that, in 1967, seventy-two private landowners owned forty-seven percent of the land in Hawaii; eighteen owned forty percent; and the resulting concentration of ownership had produced a residential market in which most homeowners did not own the ground beneath their houses but held long-term leases from a handful of estate trusts dating to the nineteenth-century Hawaiian monarchy. The legislature determined that this concentration was injurious to the welfare of the state’s residents and authorized the takings as a remedy.⁶

The challenge was direct: Hawaii was using eminent domain to take title from one set of private parties (the concentrated landowners) and transfer it to another set of private parties (the lessees). There was no clearance, no redevelopment, no public ownership at any point in the transaction. The taking was straightforwardly redistributive — it was reallocation of the fee in land from one private class to another, accomplished through the takings power.

The Court upheld the program unanimously.⁷ Justice O’Connor, writing for the Court, treated the question as foreclosed by Berman. The legislature had determined that the concentration of land ownership injured the public welfare; the taking was rationally related to that determination; the public-use clause was satisfied. Midkiff extended Berman in a structurally important way. Berman had upheld takings for slum clearance — a recognizably traditional public-health rationale. Midkiff upheld takings for the explicit purpose of redistributing concentrated wealth. The doctrine, on the Court’s reading, did not distinguish between the two. Public-purpose takings were public-purpose takings whether the purpose was to remove unsanitary buildings or to dissolve oligopolistic land concentration.

This is the second piece of the architecture, and it is the piece that matters most directly for the chartered covenant. The chartered covenant is a redistributive proposal. It takes the fee in land from current private holders and conveys it to a trust whose reparative share class is reserved for the descendants of the displaced. Midkiff establishes, on the Court’s own authority, that redistribution of land ownership to remedy what the legislature has determined to be an unjust concentration is a constitutionally permitted use of the takings power. The chartered covenant does not need to invent a new doctrine to operate. It needs only to invoke the doctrine the Court has already articulated, and to ask why that doctrine has, in the four decades since Midkiff, never once been used in the direction that The Return describes.

Kelo v. City of New London (2005)

The third case in the doctrinal sequence is the one that has generated the most public controversy and the most thoroughgoing political backlash. In 2000, the City of New London, Connecticut, adopted an integrated economic development plan that contemplated the redevelopment of a ninety-acre area along the Thames River. The plan was prompted by the announced relocation of Pfizer’s research facility to an adjacent parcel. The city took the fee in fifteen residential properties under the plan, intending to convey the assembled site to a private developer for construction of an office park, hotel, and conference center. Susette Kelo and her co-plaintiffs, whose homes had been condemned, challenged the takings as violations of the public-use clause.

The Court upheld the takings, 5-4.⁸ Justice Stevens, writing for the majority joined by Kennedy, Souter, Ginsburg, and Breyer, treated the case as foreclosed by Berman and Midkiff. The city had adopted a comprehensive economic-development plan; the plan was rationally related to public purposes; the public-use clause was satisfied. Stevens articulated the doctrine more explicitly than Berman had. The public-use clause, on the Court’s reading, was satisfied by any “rationally related conceivable public purpose,” with the legislative determination of public purpose entitled to substantial deference.

Kelo was the third panel of the triptych. Together with Berman and Midkiff, it produced a body of doctrine in which economic-development takings, redistributive takings, and clearance takings were all constitutionally available to a legislature that found a public purpose adequate to support them. The doctrinal foundation for the chartered covenant proposal does not extend further than what these three cases together permit. It sits comfortably within them.

But Kelo also contained two further moves, one in the majority’s opinion and one in Justice Kennedy’s concurrence, that bear directly on the chartered covenant analysis and that merit close attention.

The majority’s move concerned pretext. Stevens wrote that takings undertaken “for the purpose of conferring a private benefit on a particular private party” would be impermissible, as would takings “under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.” The majority held that the New London takings did not present that case — the plan was comprehensive, the public purposes were real, and the private beneficiaries were not identified at the time the plan was formulated. But the qualification was deliberate. Kelo did not authorize unlimited takings for private benefit dressed up in public-purpose language. It authorized takings for genuine public purposes that were rationally related to a comprehensive plan. The chartered covenant proposal sits well within this qualification — there is no private beneficiary at all, in the sense the Kelo majority worried about, and the public purpose is documented in the federal disposition record itself.

Kennedy’s concurrence developed the pretext analysis further, and it is in Kennedy’s concurrence that the chartered covenant proposal finds its strongest doctrinal support.

Kennedy’s Concurrence and the Pretext Doctrine

Justice Kennedy provided the fifth vote for the Kelo majority. He joined Stevens’s opinion in full. He also wrote separately to make explicit a limitation that the majority opinion had only suggested. The relevant passage is worth quoting in close paraphrase: even with rational-basis review applied to the public-use clause, a court reviewing an economic-development taking should strike down a transfer that, by a clear showing, is intended to favor a particular private party with only incidental or pretextual public benefits.⁹ Kennedy elaborated. There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption of invalidity is warranted. Kennedy declined to specify which transfers fell into that category. He noted that the New London takings did not, because the city had adopted a comprehensive plan and most of the eventual private beneficiaries were unknown when the plan was formulated.

Kennedy’s concurrence is the doctrinal hinge for any contemporary economic-development takings analysis. It establishes a pretext-and-favoritism check on the Berman/Midkiff/Kelo framework. A taking that channels public authority to a known private beneficiary, with only incidental public benefits as cover, fails Kennedy’s test even under the deferential standard the rest of the majority opinion embraced.

This matters for the chartered covenant in two distinct ways.

First, the chartered covenant clears Kennedy’s test cleanly. The proposal has no private beneficiary in the sense Kennedy’s concurrence worried about. The trust holds the land in perpetuity. The buildings remain with their existing owners, who are paid just compensation for the land taken and who continue to operate their businesses on the ground above. The reparative share class is defined by documentary criteria — displacement under federal urban renewal projects in this city — and it constitutes a class, not an identifiable private party. The class includes hundreds of households, possibly more once the descendant-identification campaign expands the register, and the share allocation is structural rather than directed. The public purpose is the structural restoration of property interests in a documented class of descendants whose ancestors were taken from under the same takings power being invoked now. There is no favored private party. There is no incidental public benefit. The structure is, end to end, a public-purpose remedy.

Second — and this is the move The Return gestured at and the one this essay can develop more fully — Kennedy’s pretext doctrine cuts more sharply against the original urban renewal takings than against the chartered covenant. The original takings of the cleared ground above the Newburgh waterfront, conducted between 1962 and 1973, were undertaken with redevelopers identified in advance, with public benefits projected as future possibilities rather than documented as comprehensive plan requirements, and with the upward wealth transfer to a developer class as the structural function of the program. The federal urban renewal program was, in many of its operations and in many of its specific projects, the kind of taking Kennedy’s concurrence flags as constitutionally suspect: takings that confer benefits on identifiable private parties with public purposes serving as cover for the underlying transfer. To the extent any specific Newburgh urban renewal taking matches that description — and the documentary record of which projects conveyed cleared ground to which named redevelopers, on what terms, with what public benefits actually realized, will demonstrate which ones do — those takings would not have survived Kennedy’s concurrence had it existed in 1965.

The doctrinal pincer that The Return described therefore tightens. Either the Berman/Midkiff/Kelo framework as construed by the majority is good, in which case the chartered covenant is constitutional under the deferential standard; or the framework is qualified by Kennedy’s concurrence, in which case the chartered covenant clearly clears the pretext test while the original urban renewal takings, in many specific projects, may not have. There is no doctrinal posture that permits the original takings to stand while disqualifying the chartered covenant.

The Originalist Counter

The doctrinal architecture I have described has been under sustained attack since Kelo was decided. Forty-three states have passed statutory restrictions on the use of eminent domain for economic development.¹⁰ The originalist position, advanced most fully in Justice Thomas’s Kelo dissent, has gained ground in legal academia and conservative legal advocacy. The strongest version of the originalist argument deserves to be engaged in full, both because it represents the most serious challenge to the chartered covenant’s constitutional posture and because — as The Return noted — the originalist argument, fully applied, attacks the title chain the opposition relies on more deeply than it attacks the chartered covenant.

Justice Thomas’s Kelo dissent argued that the public-use clause should be construed according to its original public meaning, which Thomas read as requiring actual public use of the property taken — not mere public purpose, not rational relation to a public goal, but literal use by the public as a class.¹¹ Thomas marshaled the historical evidence: the founding generation used “public use” in its narrow sense; the early state takings cases were largely confined to roads, military installations, and similar literal-use takings; the expansion of the clause to cover public-purpose takings was, on Thomas’s reading, a doctrinal accretion that had grown over the nineteenth and twentieth centuries without ever being justified at the level of constitutional text or original meaning. Berman, Midkiff, and Kelo were, on this analysis, three points along a sixty-year drift away from the clause’s original meaning, and the proper remedy was to repudiate the drift and return to the literal-use construction.

The originalist case is serious. It is supported by significant historical scholarship. It is the position of a minority of justices on the current Court, and it has occasionally come within striking distance of becoming a majority position. It deserves engagement.

The engagement, for purposes of this essay, can be brief, because the argument has already been made in The Return and only requires elaboration here. If the originalist position became law — if the Court repudiated Berman, Midkiff, and Kelo and returned to a literal-use construction of the public-use clause — the consequence would not be that the chartered covenant became unconstitutional. The consequence would be that the constitutional foundation for all twentieth-century redevelopment takings would be repudiated. Every parcel taken under Title I of the Housing Act of 1949 between 1954 and the program’s wind-down was taken under Berman‘s authority. Every parcel taken under Hawaii’s 1967 Act was taken under Midkiff. Every parcel taken under economic-development plans modeled on the New London structure was taken under Kelo. If the doctrinal foundation for these takings is invalid, the takings themselves are constitutionally suspect, and the title chains that run from those takings to the present holders are defective at their root.

Opposition cannot occupy the originalist position. An opposition’s title to the cleared ground above the Newburgh waterfront depends on the doctrine the originalists would repudiate. To argue that the chartered covenant is unconstitutional under a literal-use construction of the public-use clause is to argue that the original Newburgh urban renewal takings were unconstitutional under the same construction. The opposition’s chain of title runs through Berman. The opposition cannot disown the doctrine without disowning the link in the chain that produced their own ownership.

This is the constitutional pincer in its full doctrinal form. It is the structural feature of a title chain that runs forward from a doctrinal foundation the opposition would have to repudiate to defeat the proposal that now invokes the same doctrine in the other direction. The pincer is built into the architecture itself.

The Mill Acts ambiguity I raised earlier sits within this pincer in a specific way. The originalists who claim the Mill Acts as supporting the literal-use construction — on the theory that the Mill Acts were police-power exercises rather than takings — have to grapple with the canal, turnpike, and railroad delegations of the early nineteenth century, which were unambiguously takings and unambiguously for the operation of privately owned enterprises serving public purposes. The originalist case becomes much harder once the canal and railroad takings are foregrounded, because those takings are precisely the early-republican analog to the urban renewal takings the opposition’s own title depends on. An originalism that disqualifies Berman generally also disqualifies the early-republican delegated-takings practice, which means it disqualifies the historical foundation on which the postwar redevelopment regime was built. The opposition cannot occupy that position without dissolving its own title chain. Whether the originalists succeed at the doctrinal level matters less than whether the opposition can selectively invoke the originalism that helps them while disowning the originalism that hurts them.

**State Action Through Corporate Vehicles: Lebron v. Amtrak (1995)**

I now turn to the doctrinal piece that I am a little shy about introducing because it is most directly mine, in the literal sense that I was the petitioner and the case bears my name. But it belongs here, so here we go.

Lebron v. National Railroad Passenger Corporation, decided by the Supreme Court 8-1 on February 21, 1995, addressed a question distinct from the takings clause but doctrinally adjacent: when a sovereign acts through a corporate vehicle, do constitutional obligations attach to the corporation’s actions, or does the corporate form insulate sovereign action from constitutional scrutiny? The case has structured the analysis of state-action questions involving government-sponsored enterprises ever since, has been continuously applied across the federal courts for thirty years, and was reaffirmed and extended by the Supreme Court itself in 2015.¹² Its application to the chartered covenant proposal is direct, and it forecloses the most likely defensive move an opposition would make.

The facts can be stated briefly. In late 1992, I contracted with Transportation Displays, Incorporated — Amtrak’s leasing agent for billboards in Penn Station — to display, for two months beginning in January 1993, a photomontage I had created on the curved illuminated billboard at Penn Station’s main entrance, known as “the Spectacular.” The photomontage took off on Coors advertising campaign “It’s the Right Beer Now” and, juxtaposing convivial drinkers with images of a Nicaraguan village menaced by a Coors can hurtling toward it like a missile, reworked the slogan to “Is it the Right’s Beer Now?” The accompanying text criticized the Coors family’s funding of right-wing causes, particularly the Contra war. The work belonged to a body of anti-Contra political art I had been making throughout the 1980s, in service of the campaign that ultimately helped defeat U.S. military funding for the Contra war in 1988.¹³

Amtrak refused the advertisement on the ground that it was political. I sued. The District Court ruled that Amtrak, given its close ties to the federal government, was a state actor for First Amendment purposes and that its rejection of the advertisement violated the First Amendment. The Second Circuit reversed, holding that the federal statute creating Amtrak had explicitly stated Amtrak was not an agency of the United States and that this statutory disclaimer foreclosed the state-action analysis. The Supreme Court granted certiorari, reversed the Second Circuit, and held for me. David Cole was counsel of record, with Bruce Rich and Gloria Phares on the briefs.¹⁴

Justice Scalia wrote the majority opinion, joined by Rehnquist, Stevens, Kennedy, Souter, Thomas, Ginsburg, and Breyer. Only O’Connor dissented on a procedural matter. The holding was articulated narrowly and the language of the holding is the language that bears on the chartered covenant analysis: where the government creates a corporation by special law for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors, the corporation is part of the government for purposes of the First Amendment. The corporate form does not insulate sovereign action from constitutional obligation. The statutory declaration that Amtrak was not an agency of the United States did not change Amtrak’s actual constitutional character; the structural features of Amtrak’s creation, governance, and operation determined whether the Constitution applied to its conduct, and they did.

Scalia’s opinion contained a passage that has done significant subsequent doctrinal work and that bears repeating in close paraphrase. It surely cannot be — Scalia wrote — that government, state or federal, is able to evade the most solemn obligations imposed in the Constitution by simply resorting to the corporate form. To allow such evasion would be to permit the State of Louisiana to resurrect Plessy v. Ferguson by the device of having a state-owned Amtrak operate segregated trains.¹⁵ The corporate form, on Scalia’s reasoning, is a structural feature of the legal landscape; it is not a constitutional shield. Sovereign action conducted through a corporation remains sovereign action, and constitutional obligations travel with the action regardless of the form through which it is conducted.

The doctrine — now referred to as Public entity doctrine, and sometimes also called the Lebron doctrine in shorthand — has been applied across the federal courts in cases involving government-sponsored enterprises, public corporations, redevelopment agencies, urban renewal authorities, public benefit corporations, and the full range of corporate vehicles through which American sovereigns conduct functions they have determined to delegate to corporate form. The doctrine is settled. The application of the doctrine to specific facts is litigated case by case, but the underlying principle — that the corporate form does not insulate sovereign action from constitutional scrutiny — has not been disturbed since 1995.

The Severed Estate: A Note on Operational Precedent

An opposition’s first instinct will be to characterize the chartered covenant’s bifurcation of building from land as unprecedented. The argument runs: land and what is on it are unitary; the law treats them as one; the covenant proposes a separation that has no operational basis in American property law and is therefore an experimental innovation that should not be deployed on real parcels with real consequences for real holders.

Property bifurcation is one of the most economically consequential and operationally developed arrangements in American law, and it has been so for over a century and a half.

Consider the severed mineral estate. Under American common law, the owner of land in fee simple owns both the surface and the subsurface — but the subsurface estate may be severed from the surface estate by deed, will, or reservation, and once severed it constitutes an independent real property interest that can be bought, sold, leased, mortgaged, and inherited apart from the surface above.¹⁶ The Texas Supreme Court has described the severance doctrine as “a well established doctrine from the earliest days of the common law.”¹⁷ Once severance has occurred, two distinct estates exist on the same parcel: the surface estate and the mineral estate. The mineral estate is, in most American jurisdictions, the dominant estate; the surface estate is the servient estate. The dominant estate has an implied right to use the surface as reasonably necessary to access and extract the minerals below. The servient estate must accommodate this use, subject to the accommodation doctrine and the due regard rule that courts have developed to balance the interests of the two estates.¹⁸

The legal architecture surrounding the severed mineral estate is fully developed. Title companies search the chain of title to identify whether severance has occurred and when. The mineral estate is recorded independently of the surface deed in county property records. Title insurance protects purchasers against undiscovered severance. Quiet title actions resolve ambiguous severance language. State Dormant Mineral Acts provide procedures for reuniting severed mineral interests with the surface when the mineral estate has been abandoned. An entire profession exists to administer the severed estate: the landman, whose work consists of researching title chains, negotiating leases, managing royalty distributions, and resolving disputes between mineral and surface holders. The American Association of Professional Landmen is the trade organization for the profession. Texas, Oklahoma, North Dakota, Pennsylvania, West Virginia, Wyoming, and a dozen other states have entire economies built on the severed mineral estate as a routine operational arrangement.

The mineral severance is the bigger answer to the legal-foreclosure objection than the Loft Law section in The Return alone provides. The Loft Law established that improvements can be severed from land in the residential context, with full operational infrastructure for the bifurcation. The mineral estate establishes that subsurface rights can be severed from surface rights, with full operational infrastructure for the bifurcation, across thirty-plus states, in industries that produce hundreds of billions of dollars in annual economic activity, with case law going back to the early common law. The chartered covenant’s bifurcation of building from land is structurally cousin to both. The minerals are below; the building is above; the surface or the land is the middle term that holds the bifurcation. The doctrinal architecture is the same.

The legal-foreclosure objection — land and what is on it are unitary; the covenant’s bifurcation has no precedent — is therefore not merely wrong but inverted. American property law has, for over a century, routinely severed underground rights from surface rights, with the dominant-servient framework explicitly favoring the severed estate over the surface estate, with full operational and professional infrastructure built around the severance. The chartered covenant proposes a bifurcation that is structurally less aggressive than the mineral severance, because the covenant’s ground tribute mechanism is symmetric — the building owner pays the trust, the trust holds the ground, neither estate is dominant over the other in the mineral-rights sense. The covenant’s relationship between the two estates is more balanced than the mineral-rights regime that thirty states have administered without controversy for over a century.

Air rights provide the second instance of routine bifurcation, and the urban one. American law has, since the early twentieth century, treated the airspace above a parcel as a severable property interest. New York City’s Transferable Development Rights regime, formalized in the 1961 Zoning Resolution and continuously administered since, allows the unused development rights above a building to be sold to neighboring parcels, with billions of dollars in annual transaction volume.¹⁹ Grand Central Terminal alone holds over one million square feet of transferable development rights. The Penn Central case (Penn Central Transportation Co. v. New York City, 438 U.S. 104, 1978) — itself a takings-clause decision — established that landmark designation that limits a parcel’s air rights is not a taking when the unused rights remain transferable elsewhere, which presumes that the air rights are a distinct property interest capable of being severed from the underlying parcel and conveyed independently. The constitutional architecture supporting the air-rights severance is the same architecture that supports the chartered covenant’s building-from-land severance.

Two examples, both in continuous operation, both with full legal-architectural infrastructure, both with case law going back generations. The bifurcation the chartered covenant proposes is not unprecedented. It is structurally cousin to property arrangements American law has been administering, at scale, since the nineteenth century. The opposition’s claim that the covenant proposes an experimental novelty without operational precedent is the claim that fails on the doctrinal record. The novelty is not the bifurcation. The novelty is the application of routine bifurcation doctrine to the specific problem of restoring the residual ground claim to descendants of urban renewal displacees. The doctrinal apparatus is settled. The application is what is new.

The Newburgh Vehicles

The application of the Lebron doctrine to the Newburgh urban renewal title chain is direct and consequential. The corporate vehicles through which the cleared ground above the river has moved are the kinds of vehicles Lebron was written to reach.

The Newburgh Urban Renewal Agency (URA), which conducted the original takings and conveyances between 1962 and 1973, was a public benefit corporation chartered by the State of New York under General Municipal Law Articles 15-A and 15-B.²⁰ It was created by special law, for the furtherance of governmental objectives — specifically, the implementation of federal urban renewal funding under Title I of the Housing Act of 1949. Its directors were appointed by the city. It operated under a governmental mandate, with governmental funding, in pursuit of governmental purposes. Under Lebron, every taking it conducted, every parcel it conveyed, and every contract it executed was sovereign action subject to constitutional analysis. The fact that the URA was nominally a separate corporate entity from the City of Newburgh does not insulate its conduct from constitutional scrutiny.

The Newburgh URA’s takings practice is documented in the agency’s own files. The condemnation proceeding the agency brought against Lillian Watson — owner of a mixed-use Water Street building from which she ran a liquor store and rented a second storefront and five apartments — is one example out of many available in the same archive. Mrs. Watson refused settlement at $12,800 and at $13,500 against the agency’s own appraiser’s $14,500 figure and her appraiser’s $18,000 figure. By the time her case reached condemnation court six years after the project went into execution, her tenants had moved out and vandals had stripped the building of its plumbing and electrical fixtures. The condemnation court found that this deterioration was the direct result of the long delay on the part of the URA in acquiring the premises and set the value at $16,900.²¹ The Watson record establishes, in the agency’s own documentary archive, the operating pattern: aggressive low offers against owners’ actual investment, prolonged condemnation processes producing what the legal literature calls “condemnation blight,” and final valuations adjudicated only when owners had sufficient resources to retain counsel and contest the agency’s offers in court. Most owners did not. The agency’s titles to the parcels it conveyed downstream all run through this practice. The chain of title that produced the present holders begins with proceedings of which Watson is one documented example.

The various redevelopment limited liability companies through which the cleared parcels have moved over sixty years — the developer entities, the holding companies, the assembly vehicles — present a more complicated Lebron analysis. To the extent these vehicles operated as ordinary private real-estate companies acquiring property on the open market from prior holders, they are private actors and their conduct is not subject to the same state-action analysis. But to the extent the title they hold flows in unbroken sequence from a sovereign taking — that is, to the extent the parcels were placed in private hands by an instrument of sovereign action and the present holders’ title can be traced to that originating sovereign act — the parcels themselves carry forward an encumbrance of public obligation that the corporate form of the intervening transfers does not extinguish.

This is the structural argument the opposition will most strenuously resist, because it is the argument that prevents them from saying we are private holders now, the urban renewal program ended fifty years ago, the constitutional analysis appropriate to a public taking does not apply to our title. The Lebron doctrine, applied to the Newburgh title chain, says that the constitutional analysis travels with the parcel. The parcel was placed in its current chain of title by a sovereign act. That sovereign act was conducted through a corporate vehicle (the URA). That corporate vehicle was a sovereign instrumentality, and its actions were sovereign actions, and the constitutional obligations attaching to sovereign action attach to the parcel itself for as long as the title chain remains traceable to the originating sovereign act.

Current holders cannot have it both ways. They cannot claim the protection of pure private-property status — the kind of property a private purchaser acquires from another private purchaser through arm’s-length market transactions — while simultaneously holding title that originates in a sovereign taking conducted through a corporate vehicle that Lebron squarely characterizes as a sovereign instrumentality. The originating taking was sovereign. The conveyances downstream from the taking carry forward whatever public obligations the sovereign attached to the original disposition. If the chartered covenant says: the public obligation we are now invoking is the residual claim of the displaced and their descendants on the ground their grandparents were taken from — that public obligation is constitutionally attachable to the title chain because the title chain itself is, at its root, sovereign in character.

This is what Lebron permits. The doctrine does not require that present holders be themselves treated as state actors for all purposes. It requires only that the constitutional analysis of the title chain proceed with the recognition that the originating link in the chain was sovereign, and that the corporate forms through which the title has subsequently moved do not break the analytical chain that runs forward from that origin.

The doctrine, applied here, forecloses the corporate-form defensive move comprehensively. An opposition cannot argue that the cleared ground is private property held by private parties whose title is constitutionally insulated from the displacement that produced it. The cleared ground is private property held by private parties whose title runs back, in unbroken sequence, to a sovereign taking conducted by a sovereign instrumentality, and the constitutional obligations attaching to the sovereign taking remain attached to the parcel and to the title chain that descends from it.

The Constitutional Architecture

Five doctrinal pieces, fitted together, produce the architecture on which the chartered covenant rests.

First: the public-use clause permits redistributive and economic-development takings under the public-purpose construction articulated in Berman, extended in Midkiff, and refined in Kelo. The chartered covenant fits comfortably within this framework. Same statute family. Same doctrinal posture. Reversed direction.

Second: Justice Kennedy’s concurrence in Kelo introduces a pretext-and-favoritism check that the chartered covenant clears cleanly while the original urban renewal takings, on the historical record of which redevelopers were identified in advance and which public benefits were pretextual, may not. The pincer tightens.

Third: the originalist counter-doctrine, fully applied, dissolves the constitutional foundation for the original urban renewal takings as completely as it dissolves the constitutional foundation for the chartered covenant. The opposition cannot occupy this position without disowning its own title chain.

Fourth: Lebron v. Amtrak establishes that the corporate vehicles through which the Newburgh urban renewal title chain has moved do not insulate the underlying sovereign character of the originating takings from constitutional analysis. The corporate form is not a constitutional shield. The title chain remains subject to the analysis appropriate to its sovereign origin.

Fifth: taken together, these four doctrines describe a constitutional architecture that, viewed from inside the title chain the opposition relies on, leaves no doctrinal vector from which the chartered covenant can be defeated without simultaneously defeating the chain that produced the parcels in dispute. The proposal is not merely permitted by the doctrine. It is the structurally appropriate adjustment that the takings power was always available to make.

Closing

I have not argued that the chartered covenant is constitutionally required. The Constitution does not compel any specific exercise of the takings power. The political authority to take or not take lies with the legislature, at the federal, state, and local levels as the program structure assigns.

What I have argued is narrower and more durable. The chartered covenant proposal is constitutionally available. It sits within the doctrine the Supreme Court has built across seventy years and four landmark cases. It clears the pretext test that the strongest internal critic of the doctrine has imposed. It is defensible against the originalist counter-doctrine through the pincer that runs through the opposition’s own title chain. The state-action move that would otherwise allow the opposition to invoke private-property status is foreclosed by the doctrine I won at the Supreme Court in 1995.

This is the legal architecture. It supports the structural argument The Return made. It does not generate that argument. The political will to do the unprecedented — to do something that is truly the first in the nation — has to come from the people who would carry it. From descendants of the displaced, from the broader Newburgh public, from any individual, family, or business anywhere in the U.S. who was victimized by urban renewal, from the political authority willing to exercise the takings power in the direction the doctrine has always permitted but no municipality has to date yet chosen to run.

Where will that will come from?

At a recent city council work meeting, Newburgh’s mayor complained that the United States has offered reparations to many groups over the decades, but not to African Americans. This is an example of what reparations would look like. Not a place at the front of a rental line. The structural restoration of land taken from a community sixty years ago. No city has ever done … this.

Notes

I am a one-man band here — writer, editor, copy editor, fact-checker, graphic designer, photographer, image fabricator, legal consultant, publisher and moderator wrapped into one, publishing within a time line that is compressed from the weeks or even months of what is normally allowed for long-form investigative writing into sometimes as little as a few days. Errors and omissions are inevitable in work produced under these conditions. I rely on an informed public to identify them, and where they are identified, the record is corrected. This piece reflects my best understanding at the time of publication and is subject to revision as additional information becomes available.

Footnotes

U.S. Const. amend. V (“nor shall private property be taken for public use, without just compensation”). The clause applies to the federal government directly and to the states through the incorporation doctrine articulated in Chicago, Burlington & Quincy Railroad v. Chicago, 166 U.S. 226 (1897).
On the Mill Acts: David M. Gold, “Eminent Domain and Economic Development: The Mill Acts and the Origins of Laissez-Faire Constitutionalism,” 21 J. Libertarian Stud. 101 (2007); Lawrence Berger, “The Public Use Requirement in Eminent Domain,” 57 Or. L. Rev. 203 (1978); Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Harvard 1977), 47–53 (discussing the Mill Acts as a paradigmatic instance of the antebellum subordination of riparian rights to economic-development objectives). For a contemporary scholarly treatment grappling with the doctrinal ambiguity, see Evan C. Zoldan, “The Public Use of Private Property: Reconsidering the Mill Acts in Light of Kelo,” 82 N.Y.U. L. Rev. 1881 (2007).
Boston and Roxbury Mill Corp. v. Newman, 29 Mass. (12 Pick.) 467 (1832); Commonwealth v. Alger, 61 Mass. (7 Cush.) 53 (1851). See also Leonard W. Levy, The Law of the Commonwealth and Chief Justice Shaw (Harvard 1957) (discussing Shaw’s regulatory rather than takings characterization of the Mill Acts).
On the early-republican delegation of eminent domain authority to private corporations operating canals, turnpikes, and railroads: Harry N. Scheiber, “Property Law, Expropriation, and Resource Allocation by Government, 1789–1910,” 33 J. Econ. Hist. 232 (1973); Stanley Kutler, Privilege and Creative Destruction: The Charles River Bridge Case (1971); see also West River Bridge Co. v. Dix, 47 U.S. (6 How.) 507 (1848) (Supreme Court upholding state’s exercise of eminent domain to take a private bridge franchise for the construction of a free public highway, recognizing the antebellum delegation pattern).
Berman v. Parker, 348 U.S. 26 (1954). The case arose under the District of Columbia Redevelopment Act of 1945, Pub. L. No. 79-592, 60 Stat. 790. Justice Douglas wrote for a unanimous Court.
On the historical context of Midkiff: see Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 232 (1984) (recounting that, at the time of the legislative findings underlying the 1967 Act, forty-seven percent of Hawaii’s land was held by seventy-two private landowners and forty percent by eighteen).
Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984). Justice O’Connor wrote for an eight-justice Court (Justice Marshall did not participate).
Kelo v. City of New London, 545 U.S. 469 (2005). Justice Stevens wrote for the majority, joined by Kennedy, Souter, Ginsburg, and Breyer. Justice Kennedy filed a concurring opinion. Justice O’Connor filed a dissenting opinion, joined by Rehnquist, Scalia, and Thomas. Justice Thomas filed a separate dissenting opinion.
Kelo v. City of New London, 545 U.S. 469, 490–93 (2005) (Kennedy, J., concurring). Kennedy’s concurrence is brief but doctrinally consequential. Its key passages establish (1) that rational-basis review applied to the public-use clause does not foreclose the possibility of striking down takings intended to favor a particular private party with only incidental or pretextual public benefits, and (2) that some narrowly drawn category of takings — Kennedy declined to specify which — may warrant a more demanding standard of scrutiny because the risk of impermissible private favoritism is acute. The concurrence has been read by subsequent commentators as preserving the possibility of “rational basis-plus” review for economic-development takings that present clear pretext-and-favoritism risk. See, e.g., Lyle Denniston, “Kennedy: A Limit on Kelo’s Reach,” SCOTUSblog (June 23, 2005), https://www.scotusblog.com/.
On post-Kelo state legislative responses: National Conference of State Legislatures, Eminent Domain: 50-State Statutes (regularly updated); Ilya Somin, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press 2015) (chronicling the legislative reaction). The state-by-state count of statutes restricting eminent-domain authority for economic-development purposes, as of recent compilations, exceeds forty.
Kelo v. City of New London, 545 U.S. 469, 505–23 (2005) (Thomas, J., dissenting). Justice Thomas’s dissent is the most extensive originalist treatment of the public-use clause to appear in a Supreme Court opinion. It draws on historical sources including the Federalist Papers, early state constitutions, and Blackstone, and argues that the public-use clause should be construed to require literal public use of property taken. Justice O’Connor’s separate dissent, joined by Rehnquist, Scalia, and Thomas, argued more narrowly that Berman and Midkiff should be read to permit takings only for property whose pre-taking condition itself harmed the public, not for takings undertaken to produce projected economic benefits.
Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995). The case has generated continuing doctrinal application across the federal courts since 1995 and is the originating decision for what scholars now identify as the public entity doctrine — the principle that government-created corporations are subject to constitutional constraints regardless of statutory disclaimers of governmental status. The Supreme Court itself returned to the holding twenty years later in Department of Transportation v. Association of American Railroads, 575 U.S. 43 (2015), where the Court relied on Lebron to conclude that Amtrak is a governmental entity for separation-of-powers purposes as well as for the First Amendment purposes the 1995 holding addressed. That subsequent reaffirmation is unusual; the Court does not often re-rely on a thirty-year-old doctrine in a way that extends its reach across constitutional registers. The doctrine has been applied to Sallie Mae, the Corporation for Public Broadcasting, the Legal Services Corporation, the Tennessee Valley Authority, COMSAT, the Overseas Private Investment Corporation, the Public Company Accounting Oversight Board, and a range of state-level public benefit corporations and government-sponsored enterprises. The continuing citation pattern in lower federal courts and in academic legal scholarship establishes Lebron as live, generative, and operationally controlling on the question of when corporate form insulates sovereign action from constitutional analysis. The application to municipal redevelopment authorities chartered by special state law for governmental purposes follows directly from the holding’s logic.
The campaign I directed and produced, “The War on Children,” documented Contra war crimes through the eyes of the half of the Nicaraguan population who were children under the age of fifteen. My congressman, the late Ted Weiss (D-NY 17th, later 8th, 1977–1992), told me personally that the campaign helped him flip six congressional votes on the February 3, 1988 House vote on the Reagan administration’s $36.25 million Contra aid request. The final vote was 219 against, 211 for, ending direct U.S. military funding for the Contras. Without the campaign, Weiss estimated, the vote would have been 213 against, 217 for, and the funding would have continued.
Lebron v. National R.R. Passenger Corp., 513 U.S. 374 (1995). Petitioner: Michael A. Lebron. Counsel of record: David D. Cole. On the briefs: Bruce P. Keller, Jeffrey P. Cunard, Bruce P. Rich, and Gloria C. Phares. Justice Scalia delivered the opinion of the Court, joined by Rehnquist, C.J., and Stevens, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ. O’Connor, J., filed a dissenting opinion. The lower-court history is reported at Lebron v. National R.R. Passenger Corp., 811 F. Supp. 993 (S.D.N.Y. 1993), rev’d, 12 F.3d 388 (2d Cir. 1993), rev’d, 513 U.S. 374 (1995).
Lebron, 513 U.S. at 397. The full passage of Scalia’s reasoning on the corporate-form-as-evasion point appears at 513 U.S. at 396–97, and is cited in subsequent state-action cases as the foundational articulation of the principle that the constitutional obligations of sovereign action travel with the action regardless of the corporate form through which it is conducted.
The severance of the mineral estate from the surface estate is treated as fundamental American property doctrine. The mechanism — that an owner in fee simple may sever the subsurface from the surface by deed, will, or reservation, creating a split estate — is articulated in standard property-law treatises and in the case law of every state with significant mineral production. See, e.g., 1 Howard R. Williams & Charles J. Meyers, Oil and Gas Law §§ 202–04 (LexisNexis Matthew Bender, current edition); Hysaw v. Dawkins, 483 S.W.3d 1, 9 (Tex. 2016) (enumerating the five rights conveyed by mineral severance: development, lease, bonus payments, delay rentals, and royalty payments).
The Texas Supreme Court’s characterization appears in Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248–49 (Tex. 2013), where the court traces the implied-easement doctrine for mineral access “from the earliest days of the common law.” The reception of the doctrine in American jurisdictions traces to the early nineteenth century; James Kent’s Commentaries on American Law (1826) treats the upward and downward extension of land ownership as settled doctrine, with severability following from the underlying alienability of the estates.
The accommodation doctrine is articulated most prominently in Getty Oil Co. v. Jones, 470 S.W.2d 618 (Tex. 1971), and has been applied across mineral-producing jurisdictions in the half-century since. The “due regard” rule complements the accommodation doctrine by requiring that the dominant mineral estate operate with regard for the surface estate even where the mineral estate’s rights are paramount. See generally “Will the Mineral Estate’s Dominance Continue?,” Houston Law Review (discussing the modification of the dominant mineral estate doctrine through the accommodation doctrine and surface damage acts).
The New York City air-rights regime is codified in the 1961 Zoning Resolution, with subsequent modifications in special-purpose districts. The leading academic treatment is John J. Costonis, “The Chicago Plan: Incentive Zoning and the Preservation of Urban Landmarks,” Harvard Law Review 85: 574 (1972), and, on transferable development rights specifically, “Development Rights Transfers in New York City,” Yale Law Journal 82: 338 (1972). The constitutional treatment of air-rights severance in the takings-clause context is Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), which both presupposed the severability of the air-rights estate and established the framework for evaluating regulatory takings of partial property interests.
New York General Municipal Law: Article 15 (Urban Renewal), §§ 500–525, providing the substantive urban renewal authority; Article 15-A (Municipal Urban Renewal Agencies, Organization and Powers), §§ 550–563, establishing the public benefit corporation form for municipal urban renewal agencies (§ 553); and Article 15-B (Municipal Urban Renewal Agencies, Created), §§ 570–680-d, containing specific charter Titles for individual New York municipalities. The Newburgh Urban Renewal Agency operated as a public benefit corporation under this statutory framework, with municipally appointed directors, in furtherance of governmental objectives. The substance of the Lebron analysis does not depend on the specific charter mechanism; the analysis applies to any public benefit corporation created by special law for the furtherance of governmental objectives with majority-appointed directors, and the Newburgh URA is paradigmatically that.
The Watson condemnation proceeding is documented in the Newburgh Urban Renewal Agency records, M. E. Grenander Department of Special Collections and Archives, University at Albany, SUNY, box 35 (administrative). The case is discussed in Ann Pfau, Kathleen Lawlor, David Hochfelder, and Stacy Kinlock Sewell, “Using Urban Renewal Records to Advance Reparative Justice,” RSF: The Russell Sage Foundation Journal of the Social Sciences 10(2): 113–131 (June 2024), at 121, drawing on the appraisal and condemnation records in that archive. On condemnation blight as a doctrine, see Gideon Kanner, “Condemnation Blight: Just How Just Is Just Compensation,” Notre Dame Law Review 48(4): 765–810 (1973).