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Usings, 102 YALE LAW JOURNAL 1077 (1993)


"[N]or shall private property be taken for public use, without just compensation."

For a long time, there has been no Just Compensation Clause in constitutional law. Three words, "for public use," have been cut away from it, treated as if they prescribed a distinct command of their own. Instead of the Just Compensation Clause as written, we have a Takings Clause engulfed in confusion and a Public Use Clause of nearly complete insignificance.

This strange breach is never remarked on. It is simply presupposed, most clearly by those who complain about the toothlessness of the "Public Use Clause" in modem doctrine. Their complaint is an old story: it has to do with the line of Supreme Court decisions in which the public-purpose requirement received its current, broad construction. The Court has held, for instance, that a state may (with proper compensation) take A's estate and give it to his tenants B, C, and D on the ground that redistributing concentrated holdings of property can plausibly be deemed to further the public welfare. Construed this way, the so-called "public-use requirement" is simply duplicative of the legitimate-state-interest test that every deprivation of property must satisfy under the Due Process and Equal Protection Clauses. As a result, commentators—particularly those with an anti-redistributionist bent—have been proclaiming the demise of the public-use limitation or mocking it as "invisible" for more than forty years.

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