Constitutional Limits on the Power to Take Private Property: Public Purpose and Public Use

Oregon Law Review, Vol. 66, p. 547, 1988

53 Pages Posted: 28 May 2009 Last revised: 31 May 2009

Date Written: May 28, 2009


When private property is taken for public use, the fifth amendment to the Constitution requires that 'just compensation' be paid. What if, however, the government takes property from a private owner and turns it over to a new private owner? Does the government violate the fifth amendment when it takes private property for a private use?

In order to achieve legitimate public objectives, courts or legislatures sometimes must reallocate or rearrange private property rights. This may occur en masse, as in connection with law reform, or it may occur individually by eminent domain, as famously happened in the recent case of Kelo v. City of New London, 545 U.S. 469 (2005). While few would doubt the public purpose or general wisdom of allowing laws that occasion these rearrangements, their constitutional status is not entirely clear.

Prior to Hawaii Housing Authority v. Midkiff in 1984, the Supreme Court had never declared that the takings clause contained a public use restriction on the government's power to take property. Instead, the courts imposed limits on governmental takings by reading a "public use" or (more often) a "public purpose" requirement into the due process clauses. However, since the due process clauses have now been stripped of their Lochnerian "economic due process" teeth, the takings clause is the only one left that could plausibly limit the power to take. This article, though written before Kelo, provides a look in depth at the history of the constitutional limits on the government’s power to take private property for private use — a body of law that the Kelo case, for better of worse, did not change.

Keywords: property, property law, private property, takings, public use, public use clause, private use, just compensation, constitution, law reform, due process, substantive due process, economic due process

Suggested Citation

Humbach, John A., Constitutional Limits on the Power to Take Private Property: Public Purpose and Public Use (May 28, 2009). Oregon Law Review, Vol. 66, p. 547, 1988, Available at SSRN:

John A. Humbach (Contact Author)

Pace University School of Law ( email )

78 North Broadway
White Plains, NY 10603
United States
(914) 422-4239 (Phone)
(914) 422-4015 (Fax)


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