Eminent Domain

Expansion of Eminent Domain

Initially, the Fifth Amendment’s limitation on eminent domain applied only to takings by the federal government. In Barron v. Baltimore (1833) , the U.S. Supreme Court held that seizure of private property by the states was not subject to the “just compensation” requirement because the Fifth Amendment did not apply to state action. States were thus free to take private property without offering any sort of compensation to the owners unless state law required it. The passage of the Fourteenth Amendment to the U.S. Constitution altered the free rein states enjoyed under eminent domain. In Chicago, Burlington & Quincy Railroad Co. v. Chicago (1897) , the Court ruled that the Due Process Clause of the Fourteenth Amendment required the same level of protection of private property for state action as the Fifth Amendment required of the federal government. In a subsequent decision, the Court also held that “public use” meant that the property could not be conveyed to private individuals. Public use applied to takings for the creation of things like parks, roads, bridges, schools, and other such enterprises that are physically used by the public.

In Clark v. Nash (1905) , however, the Court began to expand the meaning of public use. In that case, the Court held that a taking could be justified so long as the government could show that it was related to the public interest or public welfare. In Clark, this reasoning validated a taking for public use despite there being a single individual who would benefit from that use. The taking was upheld because the individual could show a public interest that would be served from the exercise of eminent domain. The effect of Clark was a significant relaxing of the Fifth Amendment’s restrictions on eminent domain, and, in response, states soon became more aggressive in their takings.

States began to apply eminent domain to various public policy problems, such as urban renewal, affordable housing, residential blight, and economic development. Courts generally supported state efforts in these endeavors. In Berman v. Parker (1954) , for example, the Supreme Court upheld a District of Columbia statute directed toward urban renewal. The statute allowed a redevelopment agency to exercise the power of eminent domain to eliminate slums and substandard housing by reselling that land to other private parties for redevelopment purposes. In siding with the city, the Court stated that its role in overseeing eminent domain was extremely narrow and that, as a general rule, courts should defer to the decisions of state legislatures.

Recent decisions have affirmed Berman’s permissive attitude toward eminent domain. In Hawaii Housing Authority v. Midkiff (1984) , the Court upheld the state’s seizure of land from wealthy landowners to transfer it to lessees living on single-family residential lots on the land. The Court again declared that weighing in on the wisdom of public policy was not a proper role for the judiciary. In Kelo v. City of New London (2005) , the seizure of a home for economic development was ruled constitutional, though the majority opinion was written in such broad language that critics argued the Court had effectively deleted the word “public” from the Fifth Amendment. Public reaction to Kelo was largely negative, and in response, many states revised their eminent domain laws to afford greater protection for private property.

Regulations as Takings

The Fifth Amendment requires that just compensation be given when the power of eminent domain is exercised, but it is less clear what is owed, if anything, when property is “taken” as a result of a government regulation. A regulation that has substantial impact on the land’s value or its free use by the owner would, in application, have all the essential characteristics of a taking. Thus, the Court has confronted whether and under what circumstances regulations require just compensation.

In its early history, the Court found no relationship between regulations and takings and did not require compensation for owners adversely affected by regulations. The Court began a shift, however, in Pennsylvania Coal Co. v. Mahon (1922) . While failing to provide any clear guidance in its decision, the Court acknowledged for the first time that a regulation must be recognized as a taking when it goes “too far.” Later decisions have attempted to define the boundaries of “too far.”

One limitation was articulated in Armstrong v. United States (1960) . There, the Court ruled that a regulation that affects a single person or a small group of people is not permissible. Individuals or small groups cannot be asked to bear the costs of public interests that affect everyone. The costs of pursuing public policy objectives must be borne by everyone in the community. Thus, if a regulation has a disproportionate impact on a small number of people, a state must use eminent domain and compensate those individuals for their injuries.

Another limitation recognized by the Court applies to regulations that result in physical invasion of a person’s property. In Loretto v. Teleprompter Manhattan CATV Corp. (1982)

The Court has defined regulations that deprive an owner of all economically viable use of the land as takings. In Lucas v. South Carolina Coastal Council (1992) , the appellant had purchased coastal property with the intention of developing it into homes. After buying the property, a statute was passed barring new construction to prevent erosion. The Court, while acknowledging the problem of coastal erosion, sided with the plaintiff and ruled that a person must be compensated when a regulation renders his or her land devoid of all economically beneficial use.

The Court has qualified the preceding rule in one important respect. In Tahoe-Preservation Council v. Tahoe Regional Planning Agency (2002) , the Court determined that temporary regulations that deprive an owner of economically beneficial use of a property are permissible. As such, no compensation is due to the owner when a prohibition on economic use is temporary and the owner will be able to resume full use of the property. In making its ruling, though, the Court did not specify how long a temporary regulation could be imposed and did not address a potential issue of states passing successive temporary regulations to create a permanent regulation in fact.

Regulations must also substantially advance a legitimate government interest to not be considered takings. In Nollan v. California Coastal Commission (1987) , the appellants sought a coastal development permit to build a home on their beachfront property. The appellee issued the permit, but on the condition that the appellants grant an easement to the public across their property to allow easier access to the beach. The Court held that the condition attached to the permit was unconstitutional. The Court reasoned that the condition did not substantially advance the state’s interest in simplifying public access to the beach. The state could still accomplish its desire for an easement, but it would need to use the power of eminent domain and compensate the owners.


Courts have held that compensation requires that an owner be given the fair market value of his or her property. In practice, calculating just compensation as fair market value involves numerous difficulties. Disputes frequently arise, for example, regarding how fair market value should be determined. In the case of land seizures, courts must often take into account issues related to contract rights and other legal issues that can apply to land use. Courts may also have to contend with claims about the future economic value of the land that is taken. In short, even when compensation is due, the property owner may be challenged in ensuring that it is just.

Homeowners take fewer things for granted than being secure in their private property rights. The notion that the state can come in and take away a person’s home is unimaginable to many, yet it happens with some frequency all across the United States. In the wake of Kelo, some additional protections have been put in place to protect privacy and to help homeowners stay secure in their properties. But critics argue that more should be done to keep states from overreaching and intruding into homeowner private property rights. For now, the fight between public interest and private rights will continue to be waged in courtrooms across the United States.

Eric C. Sands

See also Bill of Rights ; United States

Further Readings

Armstrong v. United States, 364 U.S. 40 (1960).

Barron v. Baltimore, 32 U.S. 243 (1833).

Berman v. Parker, 348 U.S. 26 (1954).

Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166 U.S. 226 (1897).

Clark v. Nash, 198 U.S. 361 (1905).

Fischel, William. Regulatory Takings: Law, Economics, and Politics. Cambridge, MA: Harvard University Press, 1995.

Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).

Kelo v. City of New London, 545 U.S. 469 (2005).

Loretto v. Teleprompter Manhattan CATV Corp, 458 U.S. 419 (1982).

Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

Nollan v. California Coastal Commission, 483 U.S. 825 (1987).

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).

Siegan, Bernard. Property and Freedom: The Constitution, the Courts, and Land-Use Regulation. New Brunswick, NJ: Transaction Books, 1998.

Tahoe-Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002).