Constitutional Limits on the Power to Take Private Property: Public Purpose and Public Use

The rights/freedoms dichotomy tacitly permeates Supreme Court ‘takings\u27 jurisprudence, and it has an explanatory power which extends to virtually all ‘takings\u27 cases decided by the Court. Its explanatory power does not, however, extend to the relatively few cases which involve the taking of ‘rights\u27 for purely private use, that is rearrangements of existing private property rights, as opposed to takings for use by the government or its designees in some public service function. Because rearranging the existing pattern of private ownership takes ‘rights\u27 and not mere ‘freedoms,’ we might expect, according to the rights/freedoms pattern, that the Court would uniformly require compensation for all such rearrangements. Yet, Supreme Court cases vary as to whether legislatures can enact laws which reassign existing rights within the property system without the government\u27s ‘purchase’ of existing rights that are adversely affected