Download this Paper Open PDF in Browser

A Natural Rights Perspective on Eminent Domain in California: A Rationale for Meaningful Judicial Scrutiny of Public Use

94 Pages Posted: 18 Jan 2005  

Timothy Sandefur

Goldwater Institute

Abstract

Remarkably little attention has been paid to the role natural rights theory plays in understanding eminent domain. This article presents a historical review of the public use requirement, particularly its underpinnings in political philosophy, before turning to current public use theory and specifically the history of California's Constitutions. The article then focuses on the debates at the second California Constitutional Convention before moving on to the development in case law leading up to 1954, when courts announced the current theory of the Public Use Clause. This review demonstrates that the history of the Public Use Clause does not support the current interpretation, which permits takings on the basis of any conceivable public benefit. Reviving careful scrutiny under the Public Use Clause is increasingly necessary to provide real protection for the discrete and insular minorities who are generally on the business end of condemnations.

Keywords: Condemnation, Public Use Clause, eminent domain

JEL Classification: K11

Suggested Citation

Sandefur, Timothy, A Natural Rights Perspective on Eminent Domain in California: A Rationale for Meaningful Judicial Scrutiny of Public Use. Southwestern University Law Review, Vol. 32, p. 569, 2003. Available at SSRN: https://ssrn.com/abstract=649864

Timothy Sandefur (Contact Author)

Goldwater Institute ( email )

500 E. Coronado Rd.
Phoenix, AZ 85004
United States
(602) 462-5000 (Phone)
(602) 256-7045 (Fax)

HOME PAGE: http://www.goldwaterinstitute.org

Paper statistics

Downloads
315
Rank
79,204
Abstract Views
3,778