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h Amendment must meet in order for eminent domain to be legally justified. The first is the “public use” stipulation arguing that in order for land to be taken for public use it must be for the welfare of the general public. The second condition is the “just compensation” clause that demands that the individual whose land has be taken by the government (state or federal) must be compensated fairly to elevate the pain of lost property. Together these two concepts as called the takings clause and embody the conditions eminent domain must meet to be considered a constitutionally supported act.

As the examination of eminent domain continues another term that requires clarity is the term takings clause. In order to understand eminent domain and the court cases that surround the issue the term takings clause must be explained due to the frequency of the term's use. The takings clause is the culmination of both “public use” and “just compensation” powers found within the Fifth Amendment. The takings clause of the U.S. Constitution states basically:

The takings clause finds its foundation within the Magna Carta, section 39. The difference between England's compulsory purchase clause of the Magna Carta and the takings clause of the Fifth Amendment is that England did not require compensation for land acquire by the government, but did require compensation for personal property.

Public Use

The “public use” and “just compensation” restrictions provide a check on the power of eminent domain, over time the understanding of the eminent domain section of the Fifth Amendment has been defined as a broad concept, particularly to the notion of “public use” (Malloy, 2007). The term “public use” has become the one of the dividing factors in how one perceives the eminent domain clause of the Fifth Amendment. Justice Stevens commented on the usage of “public use” and its changing definition in his Kelo v. New London opinion:

The general and cliental definition of “public use” is anything that contributes to the general welfare and prosperity of the whole community. The more in-depth definitions of “public use” are divided into two sides. The first is the literal definition of “public use” as that which is being used by the public, and the second being that “public use” is defined as that which improves public welfare. The second definition normally defining improvements as those that happen by proxy such as the building of arenas to improve the economic state of the surrounding area and the construction of a company building that will create jobs.

Although the Supreme Court continues to show support to a broader interpretation of “public use”, there is a continued trend of support of a more literal view of the clause; not only by dissenting Justices themselves, but with the public as well (Garner, 1975). Summarizing the main view of critics of eminent domain the current use of eminent domain is viewed as being abused and requires more detailed understanding. Public opinion, however, has not deterred the Courts from their broader understanding of eminent domain and the “public use” component.

In the Court's defense, they have stated that it is up to the judicial branch to decide whether or not the eminent domain contradicts other rights in the Constitution. However, the Court agrees that it is not their job to make policy based on the