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

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