Malcolm Rivera
The Fifth Amendment of the US Constitution limits the government's power of eminent domain, stating that the government may only seize private property for public use if they provide just compensation to the property owner. The Takings Clause of the Fifth Amendment does not prohibit the government from taking private property, but it does place conditions on the exercise of that power. This includes the requirement for just compensation, which has been interpreted by American courts as the fair market value of the property. The Kelo decision in 2005 broadened the government's takings power, causing significant controversy and leading to many states passing laws to restrict the government's power.
| Characteristics | Values |
|---|---|
| Purpose | The property must be taken for "public use" |
| Compensation | "Just compensation" must be provided to the property owner |
| Due Process | No person must be deprived of their property without due process of law |
| Regulatory Taking | The government restricts a person's use of their property to the point of it constituting a taking |
| Condemnation | Governments may condemn personal property, intangible property, and real property |
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What You'll Learn
The Fifth Amendment's Takings Clause
The Takings Clause states that:
> "Nor shall private property be taken for public use, without just compensation."
This clause does not provide a definition for just compensation, but American courts have held that the preferred measure of "just compensation" is "fair market value", i.e., the price that a willing buyer would pay a willing seller in a voluntary transaction. The Takings Clause upholds the principle that the government should not single out individuals to bear excessive burdens, even in support of an important public good. When this happens, the payment of "just compensation" provides a means of removing any special burden.
Additionally, the government need not compensate private property owners when it requires them to take reasonable steps to avoid pollution or other harmful activities that damage public or private property.
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Public use limitations
The Fifth Amendment of the U.S. Constitution places several limitations on eminent domain. One of the key restrictions is that the government can only exercise eminent domain if the property is being acquired for "public use". This means that the use of eminent domain for the sole benefit of private parties is prohibited.
The interpretation of "public use" has been a subject of debate and legal disputes. In Kelo v. City of New London (2005), the Supreme Court ruled that a governmental claim of eminent domain is justified if the seizure is rationally related to a conceivable public purpose. This decision broadened the government's powers, causing significant controversy. In response, many states passed laws restricting the government's ability to claim eminent domain, such as implementing a stricter definition of "public use". For example, California's Supreme Court held that the taking of a professional sports team's franchise by a city was within the "public use" limitation, but it was not permitted due to a violation of the interstate commerce clause.
The determination of "public use" can also depend on the type of property being acquired. For instance, eminent domain has been traditionally used to facilitate transportation, supply water, construct public buildings, and aid in defence readiness. Additionally, it has been used to establish parks, preserve historic sites, and protect environmentally sensitive areas.
Another important limitation imposed by the Fifth Amendment is the requirement of "just compensation". When the government exercises eminent domain, it must provide fair compensation to the property owner, typically based on the fair market value of the property. However, the interpretation of "just compensation" can vary, and may include all reasonable and necessary costs resulting from the exercise of eminent domain authority, rather than just the value of the property.
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Just compensation
The Fifth Amendment of the US Constitution places a number of limitations on eminent domain. One such limitation is the requirement for "just compensation" to be provided to the property owner when their property is seized for public use. This is known as the Takings Clause or the Just Compensation Clause.
The Fifth Amendment does not define "just compensation", but American courts have held that the preferred measure is the "fair market value" of the property—that is, the price that a willing buyer would pay a willing seller in a voluntary transaction. This interpretation of "just compensation" has been upheld by the US Supreme Court in cases such as Bauman v. Ross (1897) and Kirby Forest Industries, Inc. v. United States (1984).
In addition to the fair market value of the property, some states have interpreted "just compensation" to include all reasonable and necessary costs resulting from the exercise of eminent domain, not just the value of the property condemned. This is known as the Broad Instruction Approach, and is used by 29 states. Seventeen states, on the other hand, use a Factor-Based Approach to determine just compensation.
The requirement for just compensation is not limited to the seizure of real property; it also applies to the condemnation of personal and intangible property, such as contract rights, patents, trade secrets, and copyrights.
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Regulatory takings
The Supreme Court has set forth a flexible multi-factor test for defining the proper unit of property to analyse whether a regulatory taking has occurred. This test requires a comparison of the value taken from the property with the value that remains. Commentators have noted that the answer to this question may be outcome-determinative. The Court has provided general guidance that the degree to which government action interferes with a property owner's interest in their property indicates whether a taking has occurred.
The Court has also clarified that a regulation restricting the use of property to further legitimate public ends will not be considered a taking simply because it impairs the value or utility of the land. However, when the regulation goes too far, it will be judicially recognised as equivalent to a taking, which may not take place without payment of just compensation to the property owner.
One precondition of a regulatory takings claim is that the claimant must obtain a final decision by the regulating entity on what uses will be permitted. The Supreme Court has ruled that the mere assertion of regulatory jurisdiction by a government body does not constitute a regulatory taking.
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State vs. federal government
The power of eminent domain is inherent in the government and may be exercised through legislation or legislative delegation. The Fifth Amendment of the US Constitution allows eminent domain as long as it is for "'public use'"just compensation" is provided to the property owner. This limitation on eminent domain was originally only applied to the federal government, but since the ratification of the Fourteenth Amendment in 1868, it has extended to the states as well.
The federal government has used eminent domain to acquire land for various purposes, such as establishing parks and open spaces, preserving historic sites, and facilitating transportation and infrastructure projects. The Supreme Court has consistently upheld the right of states to determine "public use" within their jurisdictions, as different parts of the country have unique circumstances.
In response to the Kelo decision, which broadened the government's takings power, many states have passed laws restricting their governments' takings abilities. For example, states have implemented stricter definitions of "public use" and required heightened scrutiny to justify takings.
While eminent domain is more often exercised by local and state governments, they frequently obtain funds for these projects from the federal government. The federal government has also provided assistance for relocation for those displaced by eminent domain, ensuring that it is administered uniformly and fairly.
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Frequently asked questions
Eminent domain refers to the power of the government to take private property and convert it into public use.
The Fifth Amendment to the U.S. Constitution stipulates that the government can only exercise eminent domain if they provide "just compensation" to the property owners and if the property is used for "public use". The Fourteenth Amendment extends this limitation to the states.
While the Takings Clause does not provide a definition for just compensation, American courts have held that the preferred measure is "fair market value", i.e. the price that a willing buyer would pay a willing seller in a voluntary transaction.
