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¶ … 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 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…
References
Lelo v. New London (04-108) 545 U.S. 469 (2005). Retrieved from http://www.law.cornell.edu/supct/html/04-108.ZS.html
Funk, B. (nd). CPR Perspective: The Takings Clause of The Fifth Amendment. Viewed 31 Jan 2014. Retrieved from http://www.progressivereform.org/persptakings.cfm
Treanor, W. (2010). The Original Understanding of the Takings Clause. Georgetown Law, Georgetown Environmental Law & Policy Institute Papers & Reports June 2010. Retrieved from http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1001&context=gelpi_papers
455 U.S. 904 (1982), illustrates one of the scenarios of a taking. The Court did not require a physical intrusion by the government here, but the placement of items was sufficient for a Taking without just compensation. The character and manner of the governmental intrusion is just as important as the intrusion itself. Also, the principle of regulating private property for a public purpose is demonstrated in the Loretto
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