The Fifth Amendment to the U.S. Constitution has so much meaningful content that it cannot be addressed in just one treatment or even two. In this article we will deal with the part of the amendment that says “…private property [shall not] be taken for public use, without just compensation”. That sounds simple enough, but when you drill down a little bit you see there are a lot of implications that don’t appear on first reading.
To start with, what does the language mean when it refers to “property”? Obviously that includes real estate, but what about an interest in real estate, such as the air above it or the minerals below? Both have been found to be property. How about the ability to use the property for a specific purpose? In 1922, Justice Oliver Wendall Holmes held in the case of Pennsylvania Coal Company v. H.J. Mahon, that some regulation did not rise to the level of a taking as long as it didn’t go “too far”. What constitutes going too far and amounts to a taking has been litigated ever since. In 1926, the U.S. Supreme Court decided the case of Village of Euclid, Ohio v. Ambler Realty Co. In that case the court held that it was not an unreasonable intrusion into private property rights for a government to regulate how an owner might use property. Thus was born the notion of Zoning. The Court found that the city had a reasonable right to restrict a private use and the property was not unreasonably impacted and therefore there was not a taking.
Does “property” include personal property, such as a car? Intellectual property such as a patent? Access to a piece of land when adjoining property is taken or modified to deny access?
The amendment also invites discussion about Inverse Condemnation, when the particular piece of property itself is not directly taken, but perhaps surrounding homes are condemned and allowed to decay so that the value of the remaining homes in the neighborhood is severely diminished. Has a taking occurred? There is much judicial treatment of that concept. In Kansas City, Missouri, an example of the problem arose when the South Midtown Freeway (later the Bruce Watkins Freeway and now a part of U.S. Interstate Highway 49) was being built. Litigation ensued when the city began to condemn or acquire a number of homes along the route. Legal aid stepped in on behalf of the neighborhood, which was riven by a potential super highway bisecting it. Lamentably, the litigation lasted so long that homes not directly in the path of the road became unmarketable and fell into disrepair. Legal aid ended up hurting some of the very people it was trying to help. Was there a taking? In 2006, the Justice Scalia wrote in the case of Lucas v. South Carolina Coastal Council, that a deprivation of all economically beneficial use is, from the perspective of a property owner, deprivation of the property itself. The concept of a taking continues to evolve.
The next phrase in the Amendment is “for public use”. In June 2005, the Supreme Court decided an important case involving the meaning of “public use” under the Fifth Amendment. In Kelo v. City of New London, the Court, voting five to four, upheld a city plan to condemn homes in a 90-acre, blue-collar, residential neighborhood, which was not blighted. The city plan contemplated selling the land to a developer for $1, with a 99-year lease, to build a waterfront hotel, office space and higher-end housing. Justice Stevens found this to be a public use. In a concurring opinion, Justice Kennedy indicated that the Court still stood willing to review on constitutional grounds takings that are arguably simply the city favoring one private owner over another, rather than takings based on a good faith analysis of the public interest. Angry property rights advocates reacted to the decision by suggesting that local governments consider condemning the homes of justices in the majority and turning them over to private developers for construction of B & Bs.
The last phrase of the amendment which invites discussion is “just compensation”, which of course must be determined using due process. That usually means having the matter ultimately determined by a court with competing expert witnesses testifying about how much the property is worth or how much its value has been diminished. The Fifth Amendment is part of the Bill of Rights which ostensibly applies only to the federal government, but our next discussion of the amendment will deal with why it also applies to the various states.
