Takings Clause

¶ … Clause The Taking Clause, located in the Fifth Amendment of the United States Constitution is a powerful and interesting section of the written law. In the formation of this country, the founders and architects of the nation arrived at certain questions regarding the relationship between the people's right to property and the collective need for the government to acquire that property for the good of the nation.

Because it was important to know and understand when and how a government can exercise the power of eminent domain to reclaim a property the takings clause was inserted into the Constitution. The clause essentially states that the government must pay owners "just compensation usually understood to be fair market value when it uses eminent domain to take property for public use. The right to just compensation from the government is an economic right of citizens. This protection is part of the due process rights guaranteed by the Fifth Amendment.

The purpose of this essay is to describe this clause and use real world case law to highlight its effect on the American society. Analysis Funk (nd) suggested that "The Takings Clause imposes two requirements on government in order to exercise this power. First, the property to be acquired must be "for public use," and second, the government must pay "just compensation" to the owner of the property that is taken.

The Supreme Court has long construed the term "public use" to include not only cases in which the public can arguably use the property, for example, as a public road, but also cases in which the property is not literally used by the public but the use of the property will serve a public purpose, such as redevelopment of a blighted area." These two areas of the clause are at the heart of most law cases dealing with this particular issue.

To help understand this clause the term 'public' is very important in defining how this clause may be implemented. Kelo v. New London (2005) provided one of the most recent and useful examples of how this law affects and governs. The Supreme Court recently ruled on this case citing that "The Supreme Court's 5-4 decision against Kelo and her neighbors sparked a nation-wide backlash against eminent domain abuse, leading eight state supreme courts and 43 state legislatures to strengthen protections for property rights.

Moreover, Kelo educated the public about eminent domain abuse, and polls consistently show that Americans are overwhelmingly opposed to Kelo and support efforts to change the law to better protect home and small business owners. " The public good has always been a nebulous and difficult term to accurately describe in any efficient means or manner. The Takings Clause is reserved for federal jurisdiction, but its influence has seen this practice of recapturing people's land for eminent domain at local and state levels of government.

This may be just a reflection of the more domination and influence government has in today's world were regulation and public involvement is at an apparent all time high. A more conservative view would suggest that government should tend to the letter of the law and stay out of people's property whenever possible. Treanor (2010) explained: "The original understanding of the Takings Clause was, very simply, that the federal government had to compensate the property owner when it physically took property such as when it took land to build a fort.

The clause did not require compensation for regulations under any circumstances. Property rights advocates ignore the plain language of the clause, the evidence about what the founders and other Americans in the early republic thought the clause actually meant, and the founders' views about property and democratic government. Claiming to rely on history, property rights advocates embrace, instead, a myth." Other cases such as Penn Central v. New York City (1978), Dolan v. City of Tigard (1994) and Lucas v.

South Carolina Coastal Council all provided the Supreme Court with challenging applications of the law and required a stern and lengthy investigation. At the heart of all these cases is the fundamental issue of when the government's interests outweigh those of the individual. A common standard should not be expected throughout the annals of history as this type of judgment is conditional of the times and influences of the current era.

The Takings Clause is designed to protect people from the government and not a means for government to acquire more power as often is the case in dispute revolving around this.