The Original Understanding of the So-Called 'Takings' Clause

Abstract

Throughout the years, courts and commentators have argued that the so-called Takings Clause of the Fifth Amendment limits the use of eminent domain to cases wherein the government can show that the property will be put to some "public use." Just what is meant by the term "public use" has been a subject of disagreement for almost 200 years. Throughout the 19th and 20th centuries, courts struggled to provide some definition for the term, continually alternating between the so-called "broad view," in which a public use was any use which provided a public benefit, and the "narrow view," in which it was held that a taking was only justified where there was to be an actual "use by the public."

This article argues that the traditional understanding is flawed. The Constitution does not contain any public use requirement at all. Indeed, this article argues that there is no such thing as a "takings clause" in the Constitution. On the contrary, it shows that what we call "takings" were more properly viewed by the founding generation as "givings." That is to say, 18th century Americans understood the expropriation of private property for government use as a function of the theory of consent which underlay representative government. Expropriation of property was merely another instance in which a citizen was called to give to support the government in the same way a citizen was called upon to render taxes. Expropriation of property, like taxes, was a legislative act, in which the people, through their representatives, consented to give up a portion of their property for the greater good. Unlike taxes, which supposedly fell equally on all, expropriations required compensation because one member of society was called to give more than his fair share.

This consent-based theory of expropriation allowed the taking of property on almost any basis the legislature saw fit. This is because the owner, acting through his legal representatives, could surrender his property for any purpose and on any terms. The idea of a "public use" limitation, would, therefore, have been incomprehensible to most 18th century theorists, since a public use was almost any thing the legislature desired.

It is this idea of takings that was in the minds of the drafters and ratifiers of the Fifth Amendment. There is no evidence that anyone intended to limit Congress's power to take property by eminent domain other than to require the payment of compensation when land was taken for public use. As a result, the Fifth Amendment contains little more than a compensation clause, and the use of the words, "public use" was not designed to impose a substantive test on the use of eminent domain.

JEL Classification: N0, N4