The Constitution's Property Protections: Understanding Your Rights

The Fifth Amendment protects the right to private property in two ways. Firstly, it states that a person may not be deprived of property by the government without “due process of law”, or fair procedures. Secondly, it sets limits on the traditional practice of eminent domain, such as when the government takes private property to build a public road. The Supreme Court protected property rights relatively vigorously between the Civil War and the New Deal, but the field of constitutional property was regarded as disreputable for a couple of generations after the New Deal.

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The Fifth Amendment protects the right to private property

The Supreme Court protected property rights relatively vigorously between the Civil War and the New Deal. In that period, the Court protected property via the Due Process Clauses in the Fifth and Fourteenth Amendments. However, substantive due process was repudiated during the New Deal for a variety of reasons, including the belief that it had no basis in the text of the Constitution.

In its 2005 decision in Kelo v. New London, the U.S. Supreme Court held that the phrase 'public use' in the Fifth Amendment's Takings Clause does not stop a state or local government from condemning property owned by one private party and then transferring that property to another party to promote economic development consistent with a development plan. Kelo may be the most criticised U.S. Supreme Court case in the last 30 years.

It could be that property rights are protected from state or local interference, not via the Fifth Amendment, but instead via the Privileges or Immunities Clause, or because substantive due process is part of the original meaning of the Fourteenth Amendment Due Process Clause.

The Fourteenth Amendment's Due Process Clause

The Fifth Amendment's Takings Clause, which is incorporated into the Fourteenth Amendment's Due Process Clause, also plays a role in protecting property rights. The Takings Clause sets limits on the government's power of eminent domain, requiring that any taking of private property for public use must be accompanied by just compensation at market value.

The interpretation of the Takings Clause has been a subject of debate, as seen in the Kelo v. City of New London case in 2005. In this case, the Supreme Court interpreted "public use" broadly to include a "public purpose" of economic development that might directly benefit private parties. This interpretation has been criticised as it allows the government to condemn property owned by one private party and transfer it to another for economic development purposes.

The Privileges or Immunities Clause

The Fifth Amendment protects the right to private property in two ways. First, it states that a person may not be deprived of property by the government without “due process of law,” or fair procedures. Second, it sets limits on the traditional practice of eminent domain, such as when the government takes private property to build a public road. Under the Fifth Amendment, such takings must be for a “public use” and require “just compensation” at market value for the property seized.

In Kelo v. City of New London (2005), the Supreme Court interpreted public use broadly to include a “public purpose” of economic development that might directly benefit private parties. This case has been widely criticised.

Between the Civil War and the New Deal, the Supreme Court protected property rights relatively vigorously. However, substantive due process was repudiated during the New Deal for a variety of reasons, including the belief that it had no basis in the text of the Constitution.

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The Supreme Court's interpretation of 'public use'

The Supreme Court's interpretation of public use has been controversial. In the case of Kelo v. City of New London (2005), the Supreme Court interpreted the "public use" of private property to include a "public purpose" of economic development that might directly benefit private parties. This means that the government can take private property to promote economic development consistent with a development plan. This interpretation has been criticised as it allows the government to take private property and transfer it to another private party.

The Fifth Amendment protects the right to private property in two ways. First, it states that a person may not be deprived of property by the government without "due process of law", or fair procedures. Second, it sets limits on the traditional practice of eminent domain, such as when the government takes private property to build a public road. Under the Fifth Amendment, such takings must be for a "public use" and require "just compensation" at market value for the property seized.

The Fourteenth Amendment's Due Process Clause has also been interpreted to protect property rights. Lawyers and scholars believed that the Due Process Clause "incorporated" most of the rights guarantees in the Bill of Rights, including the Fifth Amendment's Takings Clause. This means that property rights are protected from state or local interference.

The Supreme Court protected property rights relatively vigorously between the Civil War and the New Deal. However, substantive due process was repudiated during the New Deal as lawyers and scholars believed that it had no basis in the text of the Constitution.

The repudiation of substantive due process

The Fifth Amendment protects the right to private property in two ways. Firstly, it states that a person may not be deprived of property by the government without "due process of law", or fair procedures. Secondly, it sets limits on the traditional practice of eminent domain, such as when the government takes private property to build a public road. Under the Fifth Amendment, such takings must be for a public use and require "just compensation" at market value for the property seized.

However, in the 2005 case of Kelo v. City of New London, the Supreme Court interpreted "public use" broadly to include a public purpose of economic development that might directly benefit private parties. This case has been heavily criticised.

It could be that property rights are protected from state or local interference via the Privileges or Immunities Clause or because substantive due process is part of the original meaning of the Fourteenth Amendment Due Process Clause.

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