The Police Power and 'Public Use': Balancing the Public Interest against Private Rights through Principled Constitutional Distinctions


The Supreme Court’s 2005 decision in Kelo v. City of New London sparked nationwide outrage. The American public was shocked to learn that the Fifth Amendment’s Taking Clause could be interpreted to allow the government to seize a non-blighted residence and convey it to another private party to help facilitate a development project. Yet, contrary to popular belief, the Kelo decision did not mark a significant departure from the Court’s early eminent domain jurisprudence. This article traces the judicial history of the Public Use Clause and the police power of the states, and demonstrates the Court’s historical inability to clearly distinguish between these concepts. This conceptual imprecision has led to a deeply flawed and unpredictable takings jurisprudence and the erosion of individual rights. Moreover, the author demonstrates that returning the legal constructs of public use and the police power to their original narrow bounds cannot, in itself, restore a consistent and principled Fifth Amendment takings jurisprudence. Rather, a multi-tiered takings test is proposed, which would allow for greater flexibility and precision in balancing the public interest against protections of constitutional rights than is possible under a jurisprudence focusing on notions of the police power and public use.


Property Law and Real Estate

Date of this Version

October 2006