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Indiana Law Journal

Document Type

Note

Publication Date

Winter 2024

Publication Citation

99 Indiana Law Journal 619 (2024)

Abstract

The Fifth Amendment’s “public use” requirement for takings is no longer a requirement at all. Instead, the meaning of “public use” has been expanded far beyond its original intent and public understanding. The broadening of the “public use” requirement reached its breaking point in Kelo. Since Kelo, state legislatures have responded by restricting eminent domain use to remove “blighted” areas. In effect, contemporary eminent domain reduces the availability of affordable housing, which has exacerbated the affordable housing crisis. This Note explores a constitutionally permissible re-working of the eminent domain doctrine to encourage the provision of affordable housing. Interpreting the “public use” requirement through a living constitutional framework justifies heightened judicial review for blight removal takings and simultaneously justifies takings for the provision of affordable housing. With the post-Kelo legislative backlash shifting the doctrine into an exclusionary practice, an adjustment must be made to combat the affordable housing crisis. As this Note suggests, a reinterpretation of the “public use” requirement and accompanying doctrinal shift in the use of eminent domain is not only constitutional but better aligned with current public opinion and values.

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