Takings Clause: Eminent Domain, Just Compensation

This comprehensive guide explores the Takings Clause of the Fifth Amendment, focusing on eminent domain, just compensation, historical context, legal interpretations, and significant case law shaping property rights and government takings.

The Takings Clause is a critical component of the Fifth Amendment to the United States Constitution. It provides that private property cannot be taken for public use without just compensation. This legal guide aims to provide a comprehensive overview of the Takings Clause, focusing on eminent domain and just compensation. We will explore the historical context, legal interpretations, and significant case law that have shaped the understanding and application of this constitutional provision.

Historical Context

Origins of the Takings Clause

The Takings Clause is rooted in the English common law principle that the government must provide compensation when it takes private property for public use. This principle was incorporated into the Fifth Amendment of the U.S. Constitution, which was ratified in 1791. The relevant text of the Fifth Amendment states:

"Nor shall private property be taken for public use, without just compensation."

Early Applications

In the early years of the United States, the federal government's use of eminent domain was limited. Most takings were conducted by state and local governments. However, as the nation expanded and infrastructure projects such as roads, bridges, and railroads became more common, the use of eminent domain increased.

Constitutional Basis

The Takings Clause is part of the Fifth Amendment to the U.S. Constitution. It applies to the federal government and, through the Fourteenth Amendment, to state and local governments as well.

Statutory Provisions

Various federal and state statutes govern the exercise of eminent domain. These laws outline the procedures that must be followed and the criteria for determining just compensation.

Eminent Domain


Eminent domain is the power of the government to take private property for public use. This power is inherent in the sovereignty of the state and is recognized by the U.S. Constitution, subject to the requirement of just compensation.

Public Use Requirement

The Takings Clause requires that the taking of private property must be for a "public use." Historically, public use was interpreted narrowly to include projects such as roads, schools, and public buildings. However, the definition has expanded over time to include broader public purposes, such as economic development.

Key Case: Kelo v. City of New London

In the landmark case of Kelo v. City of New London, 545 U.S. 469 (2005), the U.S. Supreme Court held that the government's taking of private property for economic development constituted a permissible public use under the Fifth Amendment. This decision was controversial and led to significant public debate and legislative responses at the state level.

Just Compensation

The Takings Clause mandates that the government must provide "just compensation" to the property owner when it exercises its power of eminent domain. Just compensation is generally defined as the fair market value of the property at the time of the taking.

Determining Fair Market Value

Fair market value is typically determined by considering the highest and best use of the property, which may involve appraisals, expert testimony, and comparable sales data. The goal is to put the property owner in the same financial position they would have been in if the property had not been taken.

Procedural Requirements

The exercise of eminent domain is subject to procedural requirements designed to protect the rights of property owners. These procedures vary by jurisdiction but generally include:

  1. Notice: Property owners must be given notice of the government's intent to take their property.
  2. Hearing: Property owners have the right to a hearing to contest the taking and the amount of compensation.
  3. Appeal: Property owners can appeal the decision to a higher court if they believe their rights have been violated.

Regulatory Takings


Regulatory takings occur when government regulations limit the use of private property to such an extent that it effectively constitutes a taking, even though the property has not been physically appropriated.

Key Case: Penn Central Transportation Co. v. New York City

In Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), the U.S. Supreme Court established a framework for analyzing regulatory takings claims. The Court identified several factors to consider, including the economic impact of the regulation, the extent to which the regulation interferes with investment-backed expectations, and the character of the government action.

Types of Regulatory Takings

  1. Total Takings: When a regulation deprives a property owner of all economically viable use of their property.
  2. Partial Takings: When a regulation significantly reduces the value or use of the property but does not deprive the owner of all economic use.
  3. Exactions: When the government requires a property owner to give up a portion of their property or pay a fee as a condition for receiving a permit or approval.

The legal standards for determining whether a regulatory taking has occurred are complex and fact-specific. Courts typically apply a balancing test, weighing the government's interest in the regulation against the burden imposed on the property owner.

Significant Case Law

Berman v. Parker

In Berman v. Parker, 348 U.S. 26 (1954), the U.S. Supreme Court upheld the use of eminent domain for urban renewal projects, emphasizing that the concept of public use is broad and includes public purposes such as eliminating blight.

Lucas v. South Carolina Coastal Council

In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the U.S. Supreme Court held that a regulation that deprives a property owner of all economically viable use of their property constitutes a taking and requires just compensation.

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002), the U.S. Supreme Court held that a temporary moratorium on development did not constitute a per se taking, emphasizing the importance of considering the duration and impact of the regulation.

State-Specific Provisions


Arizona's Constitution includes specific provisions related to eminent domain and just compensation. Article 2, Section 17 of the Arizona Constitution provides that private property shall not be taken for private use and outlines the requirements for determining just compensation.


Article X, Section 2 of the Michigan Constitution addresses eminent domain and requires that just compensation be determined by a jury if requested by the property owner.


Utah's Takings Clause, found in Article I, Section 22 of the Utah Constitution, provides protections for property owners and outlines the process for determining just compensation.


The Takings Clause of the Fifth Amendment plays a crucial role in balancing the government's need to use private property for public purposes with the rights of property owners to receive just compensation. Through a combination of constitutional provisions, statutory laws, and judicial interpretations, the legal framework governing eminent domain and just compensation continues to evolve. Understanding this framework is essential for property owners, legal practitioners, and policymakers to navigate the complexities of property rights and government takings.

For further reading and official resources, please refer to the following links:

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