Reconciling Originalism and the History of the Public Use Clause

October 7, 2010

The history of the Fifth Amendment’s Takings Clause is virtually nonexistent. For at least the last century, the U.S. Supreme Court has interpreted its public use language broadly, allowing takings for the purposes of rectifying urban blight, facilitating land redistribution, and most recently, in Kelo v. City of New London, promoting economic benefit. In that case, Justice Thomas dissented vigorously, arguing that the Kelo Court had strayed from the original meaning of public use and urging it to return to requiring actual use by the public when property is condemned.

In light of Justice Thomas’s argument that the Court had abandoned the original meaning of the Takings Clause, this Note considers whether historical evidence regarding original meaning provides a coherent limiting principle. Particularly in the area of property expropriations, the historical record does not indicate that the founding generation had a concrete conception of the extent to which the right should be protected. As a result, scholarship on both sides of the public use debate presents the best evidence supporting its particular thesis, but no piece satisfactorily incorporates all of the historical evidence. In light of these considerations, this Note concludes by proposing how to reconcile originalism as a method of Constitutional interpretation for a text with an essentially unattainable original meaning and over a hundred years of case law divorced from an originalist analysis.

October 2010

No. 1