An excerpt from
The Heritage Guide to the Constitution
". . . nor shall private property be
taken for public use, without just compensation.
The drafter of this clause, James Madison, opined:
"A Government is instituted to protect property of every sort . . .
This being the end of government, that alone is a
secures to every man, whatever is his
own." Against the proposition that the singular
purpose of our government is the protection of property, there is
the curiosity that the original Constitution scarcely mentions the
term. Although at least two states demanded every other provision
that we know today as the Bill of Rights, not one requested the
Takings Clause. What explains the anomaly?
The beginning of an answer can be found in
Alexander Hamilton's observation that "the true protection of men's
rights are to be found not among old parchments, or musty records.
They are written . . . in the whole volume of human nature . . . and can never be erased or
obscured." Alexander Hamilton was, of course, referring to the
natural law, which is one of the doctrinal foundations of the
United States set out in the Declaration of
As a matter of original understanding, the
American Founders viewed the natural right to acquire or possess
property as embedded in the common law, which they regarded as the
natural law applied to specific facts. Thus, the Framers thought
that there was little need to create a "parchment protection"
against the states, which were, after all, carrying on the
common-law tradition. Many early colonial and state charters had
explicitly protected "the means of acquiring and possessing
property" as part of the common-law rights of Englishmen brought
over at the time of the first settlements. Nonetheless, Madison
apparently believed that the federal government, which, of course,
had no long-standing tradition of supporting property rights,
should be explicitly restricted to follow the common-law form. It
was not until the late nineteenth century that the clause would be
judicially applied to the states through the Due Process Clause of
the Fourteenth Amendment. Chicago, Burlington & Quincey Railroad
Property is not, however, entirely a natural
right. The Founders understood that it would need to be further
defined in statute. Particular rights of sale or use might well
vary from place to place. For example, Thomas Jefferson introduced
legislation in Virginia that would abolish landed estates
(so-called entails) that were inheritable only through limited
bloodlines. Similar restrictions were present in the common law
through the rule against perpetuities, which prevents an owner from
leaving property with ultimate ownership uncertain for too long a
period after his death.
Because the Fifth Amendment places a restriction
on the ability and manner of taking property by the federal
government, this begs a central question: what is the source of the
federal government's power of eminent domain in the first place?
The states clearly had that power through their longstanding
common-law tradition. How did the new federal government come to
possess it as well? Two answers have been proposed. The first
suggests that the power to take property is inherent in any
sovereign. Jones v. United
States (1883); Mississippi & Rum River Boom Co. v.
Patterson (1878). Although Hugo
Grotius, who coined the phrase "eminent domain" in 1625, disagreed,
a sovereign in certain very limited-usually war-time-situations,
has been allowed to take property without the obligation to
compensate. In another rare circumstance, where property is
physically taken, if the taking results in no net loss to the
owner, compensation is not due. Brown v. Legal Foundation of
Washington (2003). Putting these
rarities aside, it is frequently said that the very institution of
the federal government brings with it the power of eminent
A second answer is that the federal power of
eminent domain resides in, and is limited by, the Necessary and
Proper Clause (Article I, Section 8, Clause 18), or by Congress's
implied powers as confirmed by the Necessary and Proper
Clause. McCulloch v.
Maryland (1819); United Statesv. Gettysburg Electric Railway
Co. (1896). Under this
perspective, Congress may exercise the power of eminent domain only
in order to effectuate one of its delegated powers. Similarly, the
executive is limited to property takings allowable only under
Article II executive powers, but they are far more
restricted. Youngstown Sheet
& Tube Co. v. Sawyer (1952).
Inasmuch as James Madison came to support and propose a Bill of
Rights because he realized the range of congressional power under
the Necessary and Proper Clause, and inasmuch as the Takings Clause
is primarily his offering, such a reading has historical
What changes to the definition of property, then,
can the federal government-and since incorporation of the Fifth
Amendment, a state or local government-legislate without offending
the natural right to property that underlies the common law?
Justice Oliver Wendell Holmes initially opined that regulation must
not go "too far": a judicial limit, but not a very formidable
one. Pennsylvania Coal Co. v.
Mahon (1922). Worse, the test
actually looked at the wrong question. It focused on whether the
regulation diminished the value of the property, rather than asking
whether the regulation actually was consistent with common-law
limitations on the use of property. The confusion between
restrictions on use and diminution of value continues to affect the
judicial interpretation of the clause.
So what limits have the modern cases placed on the
regulation of property? In other words, what is "too far"? The
Supreme Court easily determined that a regulation that authorizes
the physical occupation of property was a taking. Loretto v. Teleprompter Manhattan CATV
Corp. (1982). This categorical
protection of the right to exclude emerged from the ancient
protection against trespass. But Loretto's significance was not great as a practical
matter, because few regulations have the brazenness, short of
formal condemnation, to authorize third parties to station
themselves on other's property. Occasionally, regulation comes
close to outright physical occupation, by conditioning the grant of
a governmental permit upon some forfeiture of a property interest.
For example, one homeowner was told that he could expand his home,
but only if he provided a beach easement to the public.
Nollan v. California Coastal
Commission (1987). Another was
told that she could enlarge a retail plumbing store if she set
aside property for a bike path. Dolan v. City of Tigard (1994).
In these cases, the Court has held that the
Takings Clause prohibits the regulating agencies from using the
permit process to leverage their governmental power to achieve what
they wish without cost. To survive review, regulatory conditions
must "substantially advance" a legitimate governmental interest and
be reasonably "proportionate" to the external effects likely to be
caused by the property owner's proposal. In Nollan,
the landowner was freed of the beach-easement requirement because
it was unnecessary to the government's stated purposes. In
Dolan, the store owner did not have to facilitate the
bike path, because, however desirable that might be, the need for
it was not caused by the activity being regulated (the expansion of
a plumbing store).
The Court has also applied the Takings Clause to
invalidate regulations that deprive property of all of its economic
use. Lucas v. South Carolina
Coastal Council (1992). This,
too, is a taking unless the regulation parallels the limitations in
the background principles of the state's law of property and
nuisance. In Lucas,
the desired property use was for residential construction, and the
regulating state could not show that the common-law nuisance
principles prohibited that use of the property.
The significance of the common-law/natural-right
backdrop of property continues to shape constitutional doctrine.
But what happens if modern regulation does not just mimic the
common law but imposes far greater restrictions, based perhaps on
modern environmental considerations? Recent judicial pronouncements
indicate that the courts would regard at least a certain amount of
environmental restriction as a reasonable extension of the
common-law principle. But if one knowingly purchases land in a
jurisdiction with an expansive environmental regime, the landowner
is not automatically precluded from a takings claim. Rather, that
knowledge is only one additional factor for the court to consider
in judging whether the regulation can justifiably be considered a
taking. Palazzolo v. Rhode
Other factual matters do play a significant role
in keeping most takings cases out of court. State administrative
and judicial determinations regarding the final application of
regulations to individual parcels and the availability of
compensation to owners are prolonged and expensive. Until these
processes are completed, a "ripeness doctrine" prevents owners from
seeking relief in federal court. Williamson County Regional Planning
Commission v. Hamilton Bank (1985). The Court has occasionally expressed
frustration with the bureaucratic games that result in protracted
litigation, Monterey v. Del
Monte Dunes at Monterey, Ltd. (1999), but most often property owners are turned
away from the courts and told to keep working through the
The most difficult Takings Clause cases are the
most common ones. In these, the regulation has not physically
invaded or precipitated a total loss, or even been employed to gain
undue leverage. Rather, regulation reduces, often significantly but
not totally, the economic prospects for property, and an owner asks
to be compensated. The governing case here remains Penn Central Transportation Co. v. City of
New York (1978). In Penn Central, which dealt with an ordinance that preserved a
historic landmark by imposing a large loss on the property owner by
forbidding construction of an office tower above it, the Court
admitted that the takings issue was "a problem of considerable
difficulty." "There was," said the Court, "no 'set formula' for
determining when 'justice and fairness' require that economic
injuries caused by public action be compensated by the government,
rather than remain disproportionately concentrated on a few
persons." The Court admitted that in the typical case it would
apply an ad hoc balancing test that would consider (1) the economic
impact on the property owner, (2) the extent to which the
regulation interfered with investment-backed expectations, and (3)
the character or extent of the government action.
In the weighing of these factors, most property
owners have lost their claims for compensation. A few have
prevailed by recharacterizing the portion taken as a complete
deprivation of a part, rather than a partial deprivation of a
whole. The Court has said that, where there is a regulation that is
terminated after a court has concluded that it constituted a
taking, the owner's deprivation during the temporary period in
which the regulation was effective is compensable. FirstEnglish Evangelical Lutheran Church of
Glendale v. County of Los Angeles (1987). However, whether a planned moratorium
(even if it lasts for years) constitutes a taking must be
determined by using the Penn
Central multifactor test.
Tahoe-Sierra Preservation Council,
Inc. v. Tahoe Regional Planning Agency (2002).
Despite the frustration and cost of litigation of
enforcing the Takings Clause, property owners remain indefatigable,
and they are especially so when they perceive regulation to exceed
a reasonable scope and invade that which may fairly be thought to
be one of the natural rights of ownership. The ultimate purpose of
the Takings Clause was well described by the Court more than forty
years ago as "designed to bar Government from forcing some people
alone to bear public burdens which, in all fairness and justice,
should be borne by the public as a whole." Armstrong v. United States
(1960). That is the central principle that
prompted the Framers to add the Takings Clause to the Bill of
[Editors' Note: In Kelo v. City of New London
(2005) the city of New London planned to use
eminent domain to acquire property for a redevelopment project that
would replace existing private homes in good condition with private
office space and parking lots. The property owners argued that the
taking was not "for [a] public use," and thus violated the Fifth
Amendment. In a 5-4 opinion, the Court upheld the taking, holding
that where a government presents a "comprehensive development plan"
with "public benefits" that are not merely "incidental or
pretextual," the Court will apply a deferential,
rational-basis-like standard to determine whether the asserted
public benefit of the taking satisfies the public use requirement.
In dissent, Justice Sandra Day O'Connor argued that taking of a
private property for the benefit of another private party does not
constitute public use, unless there is a direct public benefit,
such as the elimination of a blighted area.]
Article I, Section 10, Clause 1 (Obligation of
Amendment V (Due Process Clause)
Amendment XIV, Section 1 (Due Process
Suggestions for Further
James W. Ely, Jr., Property Rights in American
Richard A. Epstein, Takings: Private Property and
the Power of Eminent Domain, 289-293
Matthew P. Harrington, "Public Use" and the Original Understanding
of the So-Called "Takings" Clause, 53 Hastings L.
J. 1245 (2002)
Douglas W. Kmiec, At Last, the Supreme Court Solves the
Takings Puzzle, 19 Harv. J.L. & Pub.
Pol'y 147 (1995)
Douglas W. Kmiec, Inserting the Last Remaining Pieces into
the Takings Puzzle, 38
Wm. & Mary L.
Douglas W. Kmiec, Land Use and Zoning Law
Douglas W. Kmiec, The Original Understanding of the Taking
Clause is Neither Weak Nor Obtuse, 88 Colum. L.
Rev. 1630 (1988)
Thomas G. Roberts, Taking Sides on the Taking
Bernard H. Siegan, Property and Freedom
William Michael Treanor, The Original Understanding of the Takings
Clause and the Political Process,
95 Colum. L. Rev. 782 (1995)
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316
Mississippi & Rum River Boom Co. v. Patterson,
98 U.S. 403 (1878)
Jones v. United States, 109 U.S. 513
United States v.
Gettysburg Electric Railway Co., 160 U.S. 668 (1896)
& Quincey Railroad Co. v. City of Chicago, 166 U.S. 226
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
Armstrong v. United States, 364 U.S. 40
Penn Central Transportation Co. v. City of New
York, 438 U.S. 104 (1978)
Loretto v. Teleprompter Manhattan CATV Corp., 458
U.S. 419 (1982)
Williamson County Regional Planning Commission v.
Hamilton Bank of Johnson City, 473 U. S. 172 (1985)
Evangelical Lutheran Church of Glendale v. County of Los Angeles,
482 U.S. 304 (1987)
Nollan v. California Coastal Commission, 483 U.S.
Lucas v. South Carolina Coastal Council, 505 U.S.
Dolan v. City of Tigard, 512 U.S. 374
Monterey v. Del Monte
Dunes at Monterey, Ltd., 526 U.S. 687 (1999)
Palazzolo v. Rhode Island, 533 U.S. 606
Tahoe-Sierra Preservation Council, Inc. v. Tahoe
Regional Planning Agency, 535 U.S. 302 (2002)
Brown v. Legal Foundation of Washington, 538 U.S.
Lingle v. Chevron, 125 S. Ct. 2074
Kelo v. City of
New London, 2005 WL 1469529, 2005 U.S. LEXIS 5011
Douglas W. Kmiec is Professor of Constitutional Law and Caruso
Family Chair in Constitutional Law at the Pepperdine University
School of Law. This WebMemo is taken from the The Heritage Guide to
the Constitution, forthcoming this fall from Regnery