Cite as: 538 U. S. 216 (2003)
Scalia, J., dissenting
decision in Phillips—effectively refusing to treat the interest as the property of petitioners we held it to be—and brushes aside 80 years of precedent on determining just compensation.
II
When a State has taken private property for a public use, the Fifth Amendment requires compensation in the amount of the market value of the property on the date it is appropriated. See United States v. 50 Acres of Land, 469 U. S. 24, 29 (1984) (holding that just compensation is " 'market value of the property at the time of the taking' " (emphasis added) (quoting Olson v. United States, 292 U. S. 246, 255 (1934))); Kirby Forest Industries, Inc. v. United States, 467 U. S. 1, 10 (1984); United States v. 564.54 Acres of Monroe and Pike County Land, 441 U. S. 506, 511 (1979); Almota Farmers Elevator & Warehouse Co. v. United States, 409 U. S. 470, 474 (1973); United States v. Commodities Trading Corp., 339 U. S. 121, 130 (1950); United States v. New River Collieries Co., 262 U. S. 341, 344 (1923). As we explained in United States v. Petty Motor Co., 327 U. S. 372, 377 (1946), "just compensation . . . is not the value to the owner for his particular purposes or to the condemnor for some special use
to which state taxes cannot constitutionally be devoted. The money thus derived may be given to the poor, or to the rich, or (insofar as the Federal Constitution is concerned) to the girlfriend of the retiring Governor. Taxes and user fees, since they are not "takings," see United States v. Sperry Corp., 493 U. S. 52, 63 (1989), are simply not subject to the "public use" requirement, and so their constitutional legitimacy is entirely irrelevant to the existence vel non of a public use.
By raising the analogy of a tax or user fee the Court does, however, usefully call attention to one of the more offensive features of the takings scheme devised by the Washington Supreme Court: A tax or user fee would be enacted by a democratically elected legislature. The IOLTA scheme, by contrast, circumvents politically accountable decisionmaking, and effects a taking of clients' funds through application of a rule purportedly regulating professional ethics, promulgated by the Washington Supreme Court. (The taking has nothing to do with ethics, of course.)
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