The Interplay between the Fourteenth Amendment’s Due Process Clause and the Fifth Amendment’s Taking Clause: Is the Supreme Court’s Test for “Public Use” Merely Rational Basis?

What part of the Constitution limits the power of eminent domain? The obvious answer is the Takings Clause of the Fifth Amendment, which states “nor shall private property be taken for public use, without just compensation. But what about the Due Process Clause of the Fourteenth Amendment. It was not until 1978, in Penn Central Transp. Co. v. New York that the Supreme Court matter-of-factly held that the Takings Clause of the Fifth Amendment was “of course” applicable to the states. To justify incorporation, Penn Central cited only one 19th century case, which itself did not mention the Fifth Amendment. Before Penn Central, the court relied on the Due Process Clause to restrict the scope of state taking power.  

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