EMINENT DOMAIN, PUBLIC USE, AND THE CONUNDRUM OF ORIGINAL INTENT

The Fifth Amendment to the United States Constitution reads, in part, that private property shall not ''be taken for public use, without jus t compensation.'' Several state constitutions, both early and modern, place similar public use limitations on the eminent domain power. As t he United States underwent the Industrial Revolution in the 1800s, new mechanisms of properly distribution appeared that enabled quasi-publi c corporations, especially railroad corporations, to take others' prop erty for their own use. Some state courts reacted to the rise of the c orporation by reading the public use limitation strictly, requiring ac tual public access to the property taken in order to justify the takin g. Other courts adhered to a broader interpretation, which required on ly that the public benefit in some fashion from the taking. This debat e produced a persistent confusion in legal doctrine that lasted for de cades and obscured earlier, pre-nineteenth century Anglo-American defi nitions of the term ''public use.'' The history of takings in English law, and in the American colonial and early state and national experie nce, suggests that the ''public benefit'' theory is more in line with the early meaning of the term than is the ''actual use'' theory. Late twentieth century application of the ''public benefit'' theory, now al most universal in the United States, is thus congruent with the early meaning of ''public use.''