NewYorkUniversity
LawReview
Current Issue

Volume 84, Number 6

December 2009

Preventing Real Takings for Imaginary Purposes: A Post-Kelo Public Use Proposal

William A. Curran

By allowing the condemnation of private homes to make way for a “more attractive” private development, the U.S. Supreme Court, in Kelo v. City of New London, infuriated the libertarian legal academy and much of the public. Even worse from the perspective of individual rights, the Kelo Court blessed the taking without requiring either the City of New London—the condemnor—or any private developer to actually undertake and complete the project that justified the taking. Many calls for further property protection argue that takings like the one at issue in Kelo are not “public” enough to be permissible under the Fifth Amendment. In this Note, I focus on the word “use,” rather than “public,” in the Takings Clause. Instead of requiring that condemnation of land be proposed for a purpose more “public” than economic development, I would require that the land taken actually be used for the claimed public purpose. My proposal would honor the constitutional rights of property holders and deter inefficient takings while allowing truly beneficial takings to proceed.