Public Use: Returning to the Sources

16 Pages Posted: 28 Jan 2005

Date Written: February 4, 2005


Once considered dead letter, the public use clause of the Fifth Amendment has once again become the subject of serious legal contention. With the Supreme Court's consideration of Kelo v. New London, the public has learned that there is a serious crisis in eminent domain law: governments are regularly seizing private property for the benefit of private groups for their own private profit. Part I of this paper explains that, although the public use limitation was intended to prohibit such redistribution, courts have drifted from that original understanding since the Populist Era. Part II addresses the most important problem the legal community faces in returning to a proper understanding of the limits of eminent domain - namely, the attempt to avoid the difficult question of legitimate state interests. Part III proposes an important opportunity to limit eminent domain through state constitutions.

Keywords: eminent domain, public use, kelo v. new london, poletown, wayne county v. hathcock, legitimate state interests, california constitutional convention

JEL Classification: K11

Suggested Citation

Sandefur, Timothy, Public Use: Returning to the Sources (February 4, 2005). Available at SSRN: or

Timothy Sandefur (Contact Author)

Goldwater Institute ( email )

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


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