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The Takings Clause


The Takings Clause


The Takings Clause of the Fifth Amendment, also referred to as the Just Compensation Clause, provides that the federal government may not take private property for public use without paying just compensation. The clause also applies to the states through the Fourteenth Amendment. See §1.3. This chapter explores the question of when the government will be deemed to have taken a person’s property. The separate issue of what constitutes just compensation is not usually part of the basic Constitutional Law course. Suffice it to say that just compensation is ordinarily measured in terms of the fair market value of the property that the owner has lost through the taking.


The most obvious setting in which the Takings Clause comes into play is when the government invokes its power of eminent domain to seize or confiscate private property. The power of eminent domain allows the sovereign to take private property for public use. While the state and federal governments may acquire property through purchase, there may be instances where a private owner either is unwilling to sell or demands an exorbitant price. The power of eminent domain permits the government to take property against the owner’s wishes. If it does so, however, the Fifth and Fourteenth Amendments command that the owner be paid just compensation, calculated on the basis of the property’s fair market value.

The several states possess the power of eminent domain as a complement to their police power to promote the general welfare. The federal government has no enumerated power of eminent domain, but may nevertheless exercise this authority to the extent it falls within the Necessary and Proper Clause. Thus, the United States could use the power of eminent domain to acquire land on which to build a post office, this being necessary and proper for the government to establish post offices under Article I, §8.

If the federal government or a state wishes to exercise the power of eminent domain, it normally brings a condemnation action against the property in question. When the government institutes a condemnation proceeding, it acknowledges that property is being taken; the only issue is usually how much compensation is due. This straightforward exercise of eminent domain is studied in Real Property and Eminent Domain classes and is not a part of the course in Constitutional Law.

There is a second and more subtle way in which property may be taken within the meaning of the Takings Clause. This involves situations where the government, without invoking its power of eminent domain by filing a condemnation action, acts in such a way as to in effect take private property, but without admitting that it is doing so or offering to pay just compensation. In these so-called de facto or constructive takings cases, the property owner may be forced to bring an inverse condemnation action, asking a court to order the payment of just compensation on the ground that the government has in fact taken the plaintiff’s property. In contrast to eminent domain proceedings, where the government concedes that it is taking the property, the key issue in an inverse condemnation action is whether or not a taking has occurred.

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