Justice Thomas' Kelo Dissent, or, "History as a Grab Bag of Principles"


In Kelo v. City of New London, the Supreme Court held 5-4 that creating jobs and increasing tax revenues satisfy the Fifth Amendment’s requirement that property be "taken for public use." Justice Thomas joined the dissenters, but authored a separate opinion arguing that the Public Use Clause was originally understood as a substantive limitation that allowed the government to take property only if the government owns, or the public actually uses, the taken property. This article demonstrates that much of the historical evidence that Justice Thomas provides in his dissent to support a narrow original understanding of public use in fact supports the opposite proposition—that the words "for public use" were originally understood as allowing the government to take private property for broad public purposes and benefits, if those words were meant as a substantive limitation at all.


Constitutional Law | Jurisprudence | Legal History | Property Law and Real Estate

Date of this Version

August 2006