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 provision barring the Government from taking private property for public use absent just compensation has its origin in common law. In his Commentaries on the Constitution of the United States, Justice Joseph Story grounded the Takings Clause in “natural equity,” describing it as “a principle of universal law” without which “almost all other rights would become utterly worthless.” 1 The Supreme Court has recognized the government’s ability to take property as inherent to its powers, stating “[t]he 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.” 2

The Fifth Amendment requirement that just compensation be paid for the taking of private property is intrinsic to the Fifth Amendment’s objective of protecting citizens from government power.3 In its 1898 decision, Backus v. Fort Street Union Depot Co., the Supreme Court stated: “When . . . [the] power [of eminent domain] is exercised it can only be done by giving the party whose property is taken or whose use and enjoyment of such property is interfered with, full and adequate compensation, not excessive or exorbitant, but just compensation.” 4 Half a century later, in Armstrong v. United States, the Supreme Court explained the basis for the Fifth Amendment’s just compensation guarantee further, stating that the doctrine “was 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.” 5

In the Nation’s early years, the federal power of eminent domain lay dormant as to property outside the District of Columbia.6 It was not until the Supreme Court’s 1876 decision, Kohl v. United States,7 that the Court affirmed the federal government’s power of eminent domain as implied by the Fifth Amendment, noting that such authority was as necessary to the National Government as it was to the states. Three years later in Boom Co. v. Patterson, the Court confirmed that the power of eminent domain “appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.” 8 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 pursuant to a legitimate exercise of Constitutional authority,9 but the ambit of national powers is broad enough to enable broad objectives.10 This prerogative of the National Government can neither be enlarged nor diminished by a state.11

The Fourteenth Amendment extended the Fifth Amendment constraints on the exercise of the power of eminent domain to state governments12 Because the Fifth Amendment’s Just Compensation Clause did not explicitly apply to states,13 the Supreme Court at first did not recognize the Due Process Clause of the Fourteenth Amendment as extending to property owners the same protection against the states as the Fifth Amendment provided against the Federal Government.14 However, by the 1890s, the Court had rejected arguments that local law solely governed the amount of compensation to be awarded in a state eminent domain case. In Chicago, B. & Q. R.R. Co. v. City of Chicago, the Court ruled that, 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.” 15

While the Court has recognized the power of eminent domain to be inherent to federal and state government, federal and state governments may exercise such power only through legislation or legislative delegation. Such delegation is usually to another governmental body such as an agency or local government, although it may also be to private corporations such as public utilities, railroad companies, or bridge companies, so long as the delegation is for a valid public purpose.16 Furthermore, legislation that delegates taking authority or authorizes an agency to take property by eminent domain does not by itself constitute a taking, as “[s]uch legislation may be repealed or modified, or appropriations may fail” before the taking itself is effectuated.17

Footnotes

1

3 Joseph Story, Commentaries on the Constitution of the United States § 1784 (1833). See also United States v. Great Falls Mfg. Co., 112 U.S. 645 (1884) (federal government must compensate private property owner for loss of property resulting from federal river project).

2

United States v. Carmack, 329 U.S. 230, 241–42 (1946). The same is true of “just compensation” clauses in state constitutions. Boom Co. v. Patterson, 98 U.S. 403, 406 (1879).

3

3 Joseph Story, Commentaries on the Constitution § 1784 (1833).

4

Backus v. Fort St. Union Depot Co., 169 U.S. 557, 573, 575 (1898).

5

Armstrong v. United States, 364 U.S. 40, 49 (1960). The Supreme Court stated: “The political ethics reflected in the Fifth Amendment reject confiscation as a measure of justice.” United States v. Cors, 337 U.S. 325, 332 (1949). There is no constitutional prohibition against confiscating enemy property, but aliens not so denominated are entitled to the protection of this clause. Compare United States v. Chemical Found., 272 U.S. 1, 11 (1926) and Stoehr v. Wallace, 255 U.S. 239 (1921), with Silesian-Am. Corp. v. Clark, 332 U.S. 469 (1947), Russian Volunteer Fleet v. United States, 282 U.S. 481 (1931), and Guessefeldt v. McGrath, 342 U.S. 308, 318 (1952). Takings Clause protections for such aliens may be invoked, however, only “when they have come within the territory of the United States and developed substantial connections with this country.” United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990).

6

Prior to this time, the Federal Government pursued condemnation proceedings in state courts and commonly relied on state law. Kohl v. United States, 91 U.S. 367, 373 (1876); United States v. Jones, 109 U.S. 513 (1883). The general statutory authority for federal condemnation proceedings in federal courts was not enacted until 1888. Act of Aug. 1, 1888, ch. 728, 25 Stat. 357. See 1 Nichols on Eminent Domain § 1.24[5] (Julius L. Sackman et al. eds., 2006).

7

Kohl, 91 U.S. 367.

8

98 U.S. 403, 406 (1879).

9

United States v. Gettysburg Elec. Ry., 160 U.S. 668, 679 (1896).

10

E.g., California v. Cent. Pac. R.R., 127 U.S. 1, 39 (1888) (highways); Luxton v. N. River Bridge Co., 153 U.S. 525 (1894) (interstate bridges); Cherokee Nation v. S. Kan. Ry., 135 U.S. 641 (1890) (railroads); Albert Hanson Lumber Co. v. United States, 261 U.S. 581 (1923) (canal); Ashwander v. TVA, 297 U.S. 288 (1936) (hydroelectric power). “Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end.” Berman v. Parker, 348 U.S. 26, 33 (1954).

11

Kohl, 91 U.S. at 374.

12

Green v. Frazier, 253 U.S. 233, 238 (1920) (noting that “[p]rior to the adoption of the Fourteenth Amendment,” the power of eminent domain of state governments “was unrestrained by any federal authority” ).

13

Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).

14

Davidson v. City of New Orleans, 96 U.S. 97 (1878). The Court attached most weight to the fact that both due process and just compensation were guaranteed in the Fifth Amendment while only due process was contained in the Fourteenth, and refused to equate the missing term with the present one.

15

Chi., B. & Q. R.R. v. City of Chi., 166 U.S. 226, 233, 236–37 (1897). See also Sweet v. Rechel, 159 U.S. 380, 398 (1895).

16

Noble v. Okla. City, 297 U.S. 481 (1936); Luxton v. N. River Bridge Co., 153 U.S. 525 (1894). One of the earliest examples of such delegation is Curtiss v. Georgetown & Alexandria Turnpike Co., 10 U.S. (6 Cr.) 233 (1810).

17

Danforth v. United States, 308 U.S. 271 (1939).