B. "Public Use"

The Fifth Amendment declares that if private property is taken “for public use” compensation is required. What function does the term “public use” play in the clause? One could read the phrase as descriptive, i.e., as describing situations in which the government takes property via eminent domain (as opposed to taking it via the exercise of other powers, like taxation or punishment for a criminal offense). Under that reading, the only limit to the state’s taking authority is its willingness to pay (and the operation of other Constitutional requirements, like Equal Protection, Due Process, or the like). The Supreme Court takes a different view. Its precedent treats the term “for public use” as a substantive limitation to the takings power, albeit not a strong one.