Takings Clause

Takings Clause More accurately called the Eminent Domain Clause, the Takings Clause is part of the Fifth Amendment to the Constitution. Indeed, the Supreme Court emphasized in Dolan v. City of Tigard (1994) that the Takings Clause is an integral part of the Bill of Rights deserving judicial solicitude. Property is taken, or condemned, when a governmental entity compels the owner to transfer ownership of, or property rights in, real or personal property to the government. The Constitution does not expressly grant eminent domain power, which is regarded as an inherent power of government. Instead, the Takings Clause limits the exercise of such power by requiring that property be taken for “public use” and that just compensation be paid the owner. The purpose of the Takings Clause is to ensure that the financial burdens of public policy are shared by the entire public and not unfairly placed on individual property owners.

The Takings Clause originally applied only to the federal government. However, the Supreme Court in Chicago, Burlington & Quincy Railroad Co. v. Chicago (1897) declared that the Takings Clause applied to state governments through the *Due Process Clause of the Fourteenth Amendment. The concept is that it would be a denial of due process to compel owners to give up property without compensation. In addition, nearly all state constitutions contain takings clauses, usually in language like that of the Fifth Amendment. Thus, persons are protected against uncompensated seizures of property by the federal government by the Fifth Amendment and against such seizures by state governments by both the Fifth Amendment and state constitutions.

Since the mid‐1970s the Supreme Court has wrestled with the extent to which governmental action, short of an acquisition of title, constitute a taking of property. The Court concluded in Loretto v. Teleprompter Manhattan CATV (1982) that a permanent physical occupation of land amounted to a taking. It also held in Lucas v. South Carolina Coastal Council (1992) that a taking occurred when regulations prevented all economically viable use of land. Many issues relating to governmental acquisition and regulation of private property remain unresolved.

William B. Stoebuck; revised by and James W. Ely, Jr.