Public Use Analysis

5th Amendment requires that a taking be for public use. If government takes private land from one owner and gives to another owner for private rather than public use it violates 5th amendment.

Broad View

Narrow View

Test applied by Kelo takes broad view of public use:

• Requirement is satisfied if the taking serves a public purpose.
• - Applied and analyzed in light of the facts.

In some states, by legislation or judicial construction of constitutional requirements, private to private transfers via eminent domain for economic redevelopment purposes are never considered for public use.

• Such private to private transfers are permissible only in a narrow category of cases.
• ie. where general public acquires the post-condemnation right to actually use the property