Transcending the dilemma of “public interest” —on the meaning of the taking clause in the U.S. Constitution and its signifi cance for China

Abstract

This paper discusses the evolution and recent trends in the development of the constitutional concept of public use  in the case-law history of the United States starting from the source of US government s taking powers and the original meaning of the Taking Clause in the Fifth Amendment of the United States Constitution. Since the concepts of public use  and public interest  are extremely difficult to be defined, it is very hard for the US courts to develop a relevant operative criterion. In the United States, the safeguard of public interest  in taking mainly lies legislative rather than judicial control. In a democratic society, legislative judgment is highly respected by the courts and the entire takeovers that conform to public use as determined by the Congress are usually deemed constitutional. In this sense, the Congress is a public interest machine , which automatically generates laws and decisions on behalf of public interests through the democratic representative process. The paper eventually suggests that China should divert its attention from the theoretical definition of public interest  to institutional construction, and should make the National and Local People s Congresses and their standing committees to play major roles in deciding taking and compensation schemes.