by Jodi L. Miller
While the Fifth Amendment includes rights that are mostly focused on criminal law, it also includes what is known as the Takings Clause, which reads, “… nor shall private property be taken for public use, without just compensation.” The Takings Clause is also known as the power of eminent domain, a concept coined by a Dutch jurist in the 17th century that recognizes the power of the government to take private property for public use.
Essentially, the clause means the government can take your private property if the purpose of the seizure is for public use. However, before they seize it, the government must compensate you for that property. “Just compensation” has come to mean the fair market value for the property.
“The Founders placed great value on private property rights and therefore wanted to ensure it would be well protected,” says Ilya Somin, a professor at Antonin Scalia Law School at George Mason University in Virginia.
John Adams once said, “Property must be secured, or liberty cannot exist.” At the Constitutional Convention of 1787, Alexander Hamilton proclaimed, “One great object of government is the personal protection and security of property.” James Madison, who is the author of the Fifth Amendment and known as the Father of the U.S. Constitution, wrote in the Federalist Paper No. 10, “The first object of government is the protection of different and unequal faculties of acquiring property.”
Public use morphs into public purpose
The first ruling from the U.S. Supreme Court on eminent domain came in 1875 with the case of Kohl v. United States. In that case, the federal government wanted to seize land in Cincinnati, Ohio for the construction of a post office.
In the Court’s majority opinion, Justice William Story wrote: “The right of eminent domain was one of those means well known when the Constitution was adopted and employed to obtain lands for public uses…The Constitution itself contains an implied recognition of it beyond what may justly be implied from the express grants. The fifth amendment contains a provision that private property shall not be taken for public use without just compensation. What is that but an implied assertion, that, on making just compensation, it may be taken?”
The Takings Clause stipulates that the taking of property should be for public use purposes. Public use was originally interpreted as the building of roads, bridges or schools—projects that benefit the general public.
U.S. Supreme Court decisions, however, have expanded the definition and use of the eminent domain power to include public purpose. Timothy Duggan, an eminent domain attorney in Hamilton who chairs his firm’s Condemnation, Redevelopment, and Eminent Domain Group, says, “The distinction between public use and public purpose is often blurry, with the term ‘public use’ evolving over time.”
With the 1954 case of Berman v. Parker, the Court held that private property could be taken with just compensation if the taking was for a public purpose. The Court unanimously ruled that, “If owner after owner were permitted to resist these redevelopment programs on the ground that his particular property was not being used against the public interest, integrated plans for redevelopment would suffer greatly.”
For years, the use of eminent domain for redevelopment was limited to condemned or blighted areas. In eminent domain law, “blight” refers to the condition or decay in a property or area that could negatively impact the surrounding environment.
With its 5-4 decision in Kelo v. City of New London [Connecticut], handed down in June 2005, the U.S. Supreme Court broadened the public use basis for eminent domain to include property that was not blighted and was economically viable on its own. In addition, the decision allowed the government to use the power to benefit a private entity.
“The Court allowed the taking, finding the economic benefits of the project served a public purpose, even though there was no use of the property by the public,” says Duggan.
In Kelo’s majority opinion, Justice John Paul Stevens said that New London had the authority to take more than 15 private properties as long as the owners were fairly paid. The land would be used as part of a large-scale project by a private company to create economic development, new jobs, and increase tax revenue for the New London area.
“Beginning in the early 20th Century, the United States moved from a legal regime [system] where the government was often tightly constrained in its ability to take property to one where takings like those in Kelo were far from unusual,” Professor Somin wrote in his book, The Grasping Hand. “Gradually, relatively narrow definitions of ‘public use’ were displaced by the doctrine that government could condemn property for virtually any ‘public purpose,’ defined broadly to include almost any potential benefit that might be created by a taking.”
Justice Sandra Day O’Connor voiced concern over the Kelo decision and what it would mean for the poor in her dissenting opinion.
“Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded—i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public,” wrote Justice O’Connor. “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. The Founders cannot have intended this perverse result.”
Eminent domain in New Jersey
Justice Stevens noted in the Court’s Kelo ruling, “Nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power.” All 50 states have laws governing eminent domain.
According to Duggan, there are New Jersey laws that help protect property owners. In one law, he says the government has an obligation to enter into bona fide negotiations with a property owner before filing a condemnation complaint.
“The purpose of this requirement is to provide the property owner with an opportunity to obtain a fair price and avoid litigation,” Duggan says. “The law also provides benefits for tenants located at a property taken by the government, including requiring the government to pay certain relocation benefits.”
Why the Fifth Amendment?
So, why was the Takings Clause included in an amendment that focused on criminal law provisions? Professor Somin says there is “considerable arbitrariness” as to which rights are in which amendment in the U.S. Constitution, and not everything necessarily makes sense. Professor Somin notes, however, that the Fifth Amendment includes a provision protecting privacy and property rights through the Due Process Clause which says government cannot take away “life, liberty, or property without due process of law,” so that may be the explanation.
Duggan points out that the Fifth Amendment did not grant the United States government the power of eminent domain but rather placed a condition on the power.
“Most governments have the inherent power of eminent domain simply by virtue of being the government,” Duggan says. “However, the Founding Fathers wanted to make certain that if property was taken, the property owner would receive just compensation.”
Both Duggan and Professor Somin don’t believe that eminent domain has worked the way the Founding Fathers intended.
“In my opinion, I do not believe the Founding Fathers envisioned the expanded definition of public use,” says Duggan.
Professor Somin agrees.
“With the move from a narrow definition of public use to a broad one in the early 20th century or so, there have been all sorts of horrible takings which would’ve horrified the Founding Fathers,” Professor Somin says. “Urban renewal and blight takings, which forcefully displaced many thousands of people, things like Kelo, there’s a lot of uses for eminent domain that I think most of the Founding Fathers would find extremely problematic.”
Discussion Questions
- Both Professor Somin and Timothy Duggan don’t think eminent domain has worked the way the Founders intended. Do you agree or disagree with them? Explain in detail.
- What do you think about the expansion of eminent domain takings from a public use to a public purpose?
Glossary Words
blighted—decayed or ruined.
dissenting opinion—a statement written by a judge or justice that disagrees with the opinion reached by the majority of his or her colleagues.
eminent domain—the power of the government to take private property for public use.
majority opinion—a statement written by a judge or justice that reflects the opinion reached by the majority of their colleagues.
This article originally appeared in Constitutionally Speaking—The Fifth Amendment