The government’s power of eminent domain is constrained by two requirements: that the taking serve a public use and that just compensation be paid. The public use and just compensation requirements are the basic protections afforded to private property owners and are, consequently, the lawyer’s basic tools in the representation of private property owners in takings cases.
The public use requirement provides only minimal protection of private property rights. In contrast to the public use requirement, the obligation to pay just compensation serves as a practical limitation on government’s power of eminent domain. It forces government to pick and choose which projects it can afford to implement, thus tending to promote responsible government in a way that the public use requirement does not. Although the takings clause originally was intended to protect the use and enjoyment of private property, it now functions primarily as a constitutional safeguard against uncompensated taking or use of private property for public purposes. The underlying principle of the clause is the recognition that government should not force a select few to bear public burdens that should be borne by the public as a whole.
Restricting takings to agreed-upon public uses, without a payment obligation, only limits the uses for which private property may be taken. The amount of property that could be taken would be unlimited. On the other hand, removing all use restrictions on takings as long as government pays just compensation would limit the amount of property that it could condemn. In this scenario, government would have greater flexibility in determining when to exercise its power of eminent domain. Under either scenario, the exercise of eminent domain would still be subject to the political process if the public perceived that the power was being abused. This abuse, however, would be much more likely in the absence of the just compensation obligation than if the public use restriction were removed.