Private property is one of the basic foundations of a liberal democracy. Yet, the “eminent domain” right of government to “take” private property predates the Constitution of the United States. Eminent domain was controversial in 13^th century England (Magna Carta) and continues to be controversial in 21^st century America (Kelo). Government both protects and limits “property rights.”  The Takings Clause of the Fifth Amendment acknowledges a basic right of government to “take” private property, but also sets the limits under which such “takings” may occur: “nor shall private property be taken for public use, without just compensation.” Three phrases in this clause - “taken,” “public use,” and “just compensation.” have led to much controversy and have been the focus of many court cases. As early as 1896 the Supreme Court held that a “public purpose” could be extended to be a “public use” (Fallbrook Irrigation District v. Bradley 1896). In this case Justice Peckham states that a “public use” occurs even if it benefits only a small segment of the community leading to a series of cases - most recently the 2005 Kelo case - that depended on the semantic interpretation of the term “public use”. This paper examines the meaning of the phrase “public use” in relation to historic and contemporary interpretation of private property.
     The Supreme Court of the United States, as well as lower federal and state courts, has examined the meaning of the “public use” requirement of the Takings Clause in a number of important cases. Among the cases to be analyzed are Fallbrook Irrigation District v. Bradley (1896), Berman v. Parker (1954), Poletown v. City of Detroit (Michigan Supreme Court 1981) and most recently Kelo v. City of New London (2005).
     Government actions affect both the allocation of resources (efficiency) and redistributive justice (equity). The conclusion of this paper is that decisions of the Supreme Court in interpreting the “eminent domain” clause of the Constitution, while not always achieving efficiency, seem to come closer to meeting that goal than the goal of equity. The Kelo case has caused much discussion and action, including legislative and constitutional limits on eminent domain in several states.  The issue of eminent domain and the Kelo case in particular, has been a subject of discourse in the ongoing U.S. presidential election campaign.
     In Pennsylvania Coal v. Mahon (1922), Justice Holmes said: “We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Eighty-six years later, those words still ring true.