The Right to Use Private Property
- Author(s):
- Ilya Somin
- Posted:
- 03-2026
- Legal Studies #:
- 26-07
- Availability:
- Full text (most recent) on SSRN
ABSTRACT:
The right to use is a central element of property rights. But it is an under-analyzed aspect of the right to private property protected by the Takings Clause of the Fifth Amendment, which requires the government to pay “just compensation” whenever it takes “private property” for public use. Modern Supreme Court jurisprudence wrongly provides only modest protection for the right to use. This chapter makes the case for a strong right to use under the Takings Clause.
Part I outlines the importance of the right to use property in the real world. For most types of property, that right is an essential element of the “bundle of sticks” possessed by the owner, often even the most important element. That point applies to both property in land, and personal property. Part II makes the originalist case for a strong right to use under the Takings Clause. William Blackstone—a major influence on early American conceptions of property law and on the leading American Founders—regarded the right to use as a central element of property rights. The same was true of leading court decisions and legal theorists around the time when the Takings Clause and the rest of the Bill of Rights became “incorporated” against state and local governments in 1868. Part II also gives a brief overview of the “police power” exception to Takings Clause liability and its relevance to the right to use. That exception would deny compensation in cases where the use restricted poses a significant threat to public health or safety. But it does not do so in other situations, including the vast majority of exclusionary zoning restrictions on housing construction.