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: Suggested Citation