The 5th Amendment's Eminent Domain Clause says that the government
cannot take away anyone's private property for public use without
giving them just compensation in return. This clause is
also known as the "Takings" Clause, because the government can "take"
the property. The 5th Amendment Eminent Domain Clause in the American
Bill of Rights reads like this:
"...nor shall
private property be taken for public use,
without just compensation."
The
History of the Eminent Domain Clause
The idea that the government has the power of eminent domain goes back
in English history to the Magna Carta in 1215. This was the first time
that the idea was written into law. The Magna Carta was the first
official document in English history that required the monarch to obey
the written laws of the government. Article 39 of Magna Carta says:
"No freemen shall be taken or
imprisoned or disseised or exiled or
in any way destroyed, nor will we go upon him nor send upon him, except
by the lawful judgment of his peers or by the law of the land."
The word "disseised"
means "deprived." So it says "No freemen shall be... deprived" of his
property "except by the lawful judgment of his peers or by the law of
the land. This means that the government could take someone's property,
but only according to "the law of the land," meaning the understood
laws of the nation. You
can read the entire Magna Carta here.
This Magna Carta Article states that the government has the power of
eminent domain, but it does not say that the government has to
compensate the owner of any property it takes. This idea never took
hold in England before the Revolutionary War. In fact, the thirteen
colonies regularly confiscated lands before the American Revolution for
public purposes such as roads and bridges, especially to open up the
frontier. Paying for the land was not a part of the process!
During the Revolutionary War itself, colonial governments seized
property and goods for the use of the Continental army at times, such
as metal for bullets, or food to eat. The property of Loyalists to
Britain was taken sometimes as well.
Also during the Revolutionary War, the British government routinely
confiscated supplies and homes for use during the war. By the time the
Bill of Rights was added to the Constitution, American citizens had had
enough of their governments taking their land or other property without
paying them back.
James Madison believed that the right to own private property was a
right of all people and that it was the government's job to protect
that right. He made the following comment in a short essay called Property:
"A Government is instituted to
protect property of every sort.... This being the end of government,
that alone is a just government, which impartially secures to every
man, whatever is his own."
In order to preserve property rights, but still allow the government to
take property at times if it was appropriate, James Madison proposed
the Eminent Domain amendment to the Constitution on June 8,
1789, along with a list of about twenty other amendments to the
Constitution.
These amendments were necessary to ensure that individual rights would
be protected under the new form of government. Many people refused to
even support the new Constitution unless a Bill of Rights was added to
it. A Bill of Rights is a list of specific rights that will be
protected from infringement by the government.
The First Congress included the Eminent Domain Clause in the 5th
Amendment for several basic reasons.
It wanted to clarify that the government did
have the right at times to take privately owned property for public use.
It wanted to clarify that private property
could be taken by the government only
for public use, and not for any other reason.
It wanted to point out that the government is required to
compensate people if it takes their property for public use.
Eminent
Domain Definition
A simple eminent domain definition is:
"The right of a
government to appropriate private property for public use, usually with
compensation to the owner."
Eminent
Domain Clause in everyday life
The courts made little use of the Eminent Domain Clause in the first
100 years of the United States. Later though, it came into prominence
as a very specialized type of court case with very specialized
procedures for judging them.
The courts have decided such things as that Eminent Domain
applies to intellectual property such as patents, copyrights and trade
secrets, mining rights, land (of course) and physical goods such as
food or industrial supplies in a time of war.
Highways are
"public use" projects
Private property can be taken not only for "public use" projects, it
can also be taken for projects that are for a
"public good." "The public good" is defined very broadly and generally
the courts allow the legislature to determine what a public good
is. Eminent Domain can be used by a government to
take
property
for such things as railroads, public utilities, parks, museums,
schools, highways or other public facilities. Normally, if a government
decides to take a property through use of Eminent Domain,
the major decision is how much is to be paid to the owner, but
sometimes owners will challenge the right of the government to take
their property by claiming that the use intended by the government is
not a public use.
Eminent Domain can also be used to take public property for
public beautification projects such as national parks or trails. It can
also be used to buy up blighted neighborhoods that are
eyesores. Eminent Domain can be used to take
private
property for large
scale building projects that will benefit the public at large by
providing new jobs and recreation.
Properties taken through Eminent Domain do not
necessarily
have to be used by the public, they just have to provide a public
benefit. So, for example, if a government waterway project caused
someone's land to flood, the government would not be violating the
Eminent Domain Clause and would not have to compensate the owner of the
flooded land because the improved waterway provides a public benefit.
Eminent
Domain Clause - Fair Market Value
When private property is taken through use of Eminent Domain,
the government is normally required to pay the fair market
value of the property to its owner. The owner cannot jack the price up
to an exorbitant amount. The government itself can determine what the
fair market value is and the owner won't have any say about it. Many
times though, the government will simply tell the landowner what its
development plans are and ask them to sell without resorting to the
Eminent Domain Clause. If he consents to sell it, the
government will not have to take the property against the owner's will.
This is to be preferred because both parties are working together
amicably.
Governments must follow the written laws and procedures that govern
Eminent Domain Clause "takings" in their local jurisdiction. They
cannot just arbitrarily take anything they want, when they want. If an
official tried to take a property without following written laws and
procedures, he would be charged with violating the Eminent Domain
Clause.
Eminent
Domain Clause - Regulatory "takings"
Modern courts have interpreted the Eminent Domain Clause not only to
apply to the physical taking of property, but also to the reduction in
value of someone's property due to government activities or
regulations. For example, if a public airport lowers the property value
of lands next to it because of loud noise, the property owners should
be compensated for their properties' lost value. Likewise, if
environmental regulations prohibit someone from mining on his land or
developing his land, he can be compensated for the lands' lost value.
The 5th Amendment Eminent Domain Clause did not apply originally to the
States when it was adopted in 1791, nor did any of the restrictions
listed in the Bill of Rights. After the Civil War though, the 14th
Amendment was added to the Constitution. Through its interpretation of
the 14th Amendment's Due Process Clause, the Supreme Court has applied
all of the Bill of Rights' restrictions against the states now as
well, including the Eminent Domain Clause.
