Amdt5.5.1.1 Takings Clause: Overview

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment to the Constitution says ‘nor shall private property be taken for public use, without just compensation.’ This is a tacit recognition of a preexisting power to take private property for public use, rather than a grant of new power.¹ Eminent domain appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.² In the early years of the nation the federal power of eminent domain lay dormant as to property outside the District of Columbia,³ and it was not until 1876 that its existence was recognized by the Supreme Court. In Kohl v. United States⁴ any doubts were laid to rest, as the Court affirmed that the power was as necessary to the existence of the National Government as it was to the existence of any state. The federal power of eminent domain is, of course, limited by the grants of power in the Constitution, so that property may only be taken for the effectuation of a granted power,⁵ but once this is conceded the ambit of national powers is so wide-ranging that vast numbers of objects may be effected.⁶ This prerogative of the National Government can neither be enlarged nor diminished by a state.⁷ Whenever lands in a state are needed for a public purpose, Congress may authorize that they be taken, either by proceedings in the courts of the state, with its consent, or by proceedings in the courts of the United States, with or without any consent or concurrent act of the state.⁸

Prior to the adoption of the Fourteenth Amendment, the power of eminent domain of state governments was unrestrained by any federal authority.⁹ The Just Compensation Clause of the Fifth Amendment did not apply to the states,¹⁰ and at first the contention that the Due Process Clause of the Fourteenth Amendment afforded property owners the same measure of protection against the states as the Fifth Amendment did against the Federal Government was rejected.¹¹ However, within a decade the Court rejected the opposing argument that the amount of compensation to be awarded in a state eminent domain case is solely a matter of local law. On the contrary, the Court ruled, although a state legislature may prescribe a form of procedure to be observed in the taking of private property for public use, . . . it is not due process of law if provision be not made for compensation. . . . The mere form of the proceeding instituted against the owner . . . cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation.¹² Although the guarantees of just compensation flow from two different sources, the standards used by the Court in dealing with the issues appear to be identical, and both federal and state cases will be dealt with herein without expressly continuing to recognize the two different bases for the rulings.

The power of eminent domain is inherent in government and may be exercised only through legislation or legislative delegation. Although such delegation is usually to another governmental body, it may also be to private corporations, such as public utilities, railroad companies, or bridge companies, when they are promoting a valid public purpose.¹³