The Meaning of “Taken for Public Use”

Debate about the significance of the “public use” language in the Takings Clause generally assumes that the language is a limit on the power of eminent domain. This Essay argues that the language is better understood as an operative predicate that tells us what kinds of takings require the payment of compensation. The Supreme Court has come to recognize that all sorts of takings occur that do not require compensation, according to what the Court has characterized as “background principles of property law.” The phrase “taken for public use” offers a more principled account of the subset of takings in which compensation is required: those in which property is taken to be used as a building block in a project that has been authorized by public authority. This understanding of “taken for public use” captures nearly all of the Court’s background principles, and it describes both the dominant use of the Clause in regulating exercises of eminent domain as well as most of the cases in which the Court has required compensation for regulatory takings.