Guest Essayist: Gordon S. Jones, Utah Valley University

Amendment V:



The power to take private property is not one of the “enumerated” powers set forth in the Constitution. But as a practical matter, one of the things that makes a government a government appears to be the power to take property. That right is called “condemnation,” or the power of “eminent domain.”

The theory is that without government, any private property is subject to confiscation by anybody stronger. Governments (and especially ours) exist to protect property from such arbitrary takings. The Declaration of Independence identifies “life, liberty, and the pursuit of happiness” as among the “inalienable rights,” but the Founding Fathers, relying on English theorist John Locke, understood “happiness” to include the right to private property. Early uses of this phrase actually say “life, liberty, and property.” Alexander Hamilton described “the security of property” as one of the primary purposes of government.

With the “takings” clause of the Fifth Amendment, Founding Father James Madison was only trying to provide property owners with at least the assurance that proper procedures would have to be observed in takings, and that owners would at least get something for their loss.

There are a number of concepts that need to be explored in understanding the Takings Clause: what is a “taking,” what is “public use,” and what is “just compensation”?

If the government takes your farm and builds a military base on it – occupies it – that is obviously a “taking.” But what if you own property on top of a mountain, and you want to build five houses on it that you can sell for $1 million each. Government tells you that you can only build one house there, and that house will sell for only $1.5 million. Has the government “taken” $3.5 million from you?

If a Forest Ranger discovers a spotted owl nesting in your tree farm, you may not be allowed to cut the trees. Has government “taken” the value of the timber?

These are the kinds of questions governments and courts ask in deciding whether property has been “taken.” It would be nice to think that, after more than 200 years, we had clear answers to these and similar questions, but the fact is, we don’t. One Supreme Court Justice said that government could impair the value of property by regulation without paying compensation as long as it didn’t go “too far.” Not exactly the clearest standard.

What about “public use”?

If your county government takes your property and builds an airport on it (or a school or hospital), most would agree that the property had been taken for a “public use.” On the other hand, what if the property was taken and sold to a private developer who built an office building on it? Would that be a “public” use? Probably not, but if the property were in a run-down (“blighted”) area of town, and the development eliminated a row of crack houses and re-vitalized the economics and livability of the neighborhood, the courts might find such a taking justified (and therefore constitutional).

Again, you might think that there is a lot of “wiggle room” in these judgments, and you would be right. Some years ago, the State of Hawaii forced private landowners to sell their land to tenants. The Supreme Court upheld the forced sales as being for a “public use.” We might think such a judgment obviously wrong, but we might change our mind if we knew that in Hawaii at that time 72 owners had inherited from ancient times more than 90 percent of the private land in the islands.

A more questionable case occurred in 2005, when the city of New London, Connecticut took several private homes and sold them to a private developer for an office building. There was no question of “blight” in this case, but the city argued that it would get more tax revenue from the office building than it was getting from the private homes, so that the “public” would benefit. This case (Kelo vs. New London) generated a firestorm of opposition, moving many states to strengthen the safeguards on their eminent domain procedures. Critics of the Kelo decision argue that it has changed the words “public use” to the much looser “public purpose.”

Finally, what is “just compensation”? If the city wants to build a road across my property and offers me $1 million for it, I might consider that “just,” and be happy to take it. On the other hand, if my grandfather is buried there, no amount of money could tempt me to sell willingly.

Governments have set up procedures for determining what the “fair market value” is for any property subject to condemnation. These involve the use of real estate appraisers, economists, and planning forecasters. They also typically involve extensive negotiations, which can be expensive for a private landowner – so expensive that the landowner eventually gives up and gives in to the government, which has all the resources of the taxpayer to call on to finance its battle.

The right to own property is part of what the Founding Fathers called the “natural law,” one of the “inalienable rights” mentioned in the Declaration of Independence. The Constitution was written for the purpose of “ensuring” those rights, so we should be very suspicious of governmental power that infringes the enjoyment of property rights. But it is obvious that completely unfettered use of property by one person could infringe the rights of other property owners. At the present time, the system we use to reconcile conflicting – or potentially conflicting – rights is the power of eminent domain, hedged up, as it must always be, with the procedural safeguards guaranteed by the Fifth Amendment: that the “taking” be for a “public use,” and that it be accomplished by “just compensation.”

Gordon Jones, a long-time policy analyst in Washington, studied constitutional Law with Robert Horn at Stanford University, has his Master of Philosophy in Political Science from George Washington University, and teaches Law and Politics at Utah Valley University.


March 20, 2012

Essay #22