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Issues in Land Use Law & Zoning

An Introduction to Takings Law

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

The framers of the Constitution enshrined in the Fifth Amendment one of the most fundamental of individual rights -- to own property free of the threat of seizure by government, unless the government pays for it.

With these few words, the framers of the United States Constitution enshrined in the Fifth Amendment one of the most fundamental of individual rights -- to own property free of the threat of seizure by government, unless the government pays for it. This basic property right was derived from 17th and 18th Century English legal tradition that prohibited the king from taking a subject's property except by a duly enacted law of the land and with full indemnification.

Historical records show that what the drafters of the Bill of Rights had in mind when they adopted the "just compensation" or "takings" clause was to permit the government to take private property for public use -- for example, land needed for a public highway -- but only upon payment of compensation. Today, we call this government action exercising the right of eminent domain or condemnation. Thus once again, the framers demonstrated their genius in balancing the rights of the individual with the clear need of the people -- government -- to undertake public projects for everyone's benefit.

It is hard to imagine how the nation could have grown or society would have functioned without the ability to judiciously exercise the power of eminent domain to build roads, dams, parks, and other projects. Indeed, hardly any reasonable person would quarrel with that notion. ...

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