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Shaun A. Goho, Process Oriented Review and the Original Understanding of the “Public Use” Requirement, 38 SW. L. Rev. 37 (2008).

Abstract: Competing visions of the original understanding of the public use requirement underlie the current debate on the appropriate interpretation of the Takings Clause. In this article, I argue that neither Justice Thomas's view that the original understanding embodied the narrow "use by the public" test, nor the view, espoused by Matthew Harrington and others, that "public use" was thought to impose no substantive limit on legislatures,accurately captures the original understanding. Instead, the founding generation understood the public use requirement to impose real, but limited, bounds on legislative power. The fundamental purpose of the public use requirement was to prevent arbitrary or discriminatory seizures of property. In particular, the archetypal constitutional violations were transfers of property "from A to B" with no justifying public purpose. In the last part, I propose that process-oriented review, while not compelled by the original understanding, is consistent with the purpose of the public use requirement.