The Fifth Amendment under Siege

  • 26 May 2015
  • NormanL
Fifth Amendment under Siege

Another portion of the Bill of Rights that has been under government assault for many, many, years is the Fifth Amendment. We generally understand that the Fifth Amendment protects our rights in court proceedings. But it also protects our property from government. Or rather it's supposed to protect our property from government. In many states and localities, that's no longer true thanks to the scourge of eminent domain:

The Fifth Amendment, which says that government may not take private property for public use without due compensation, was once interpreted to mean that government cannot take private property for private use at all and must pay compensation when it takes it for public use. But over time it has come to be reinterpreted to mean that government can take property rights through regulation without compensation and it can take private property from one owner and give it to another private party with compensation.

Several Supreme Court decisions have led to this result, but three are probably the most important: The Euclid decision legalized zoning to prevent nuisances; the Penn Central decision approved takings of property rights through land-use regulation even when there was no danger of a nuisance; and the Kelo decision allowed cities to take peoples’ land by eminent domain to give to private developers even when the land wasn’t blighted. All of these rulings have one thing in common: the Court said that the cities involved could ignore the traditional interpretation of the Fifth Amendment because they had written an urban plan. No wonder urban planners have so much power: the Supreme Court has given any city that employs one a get-out-of-the-Fifth-Amendment-free card.

The property rights movement has won some significant victories in states, passing laws and constitutional amendments that restore the rights originally guaranteed to us in the Fifth Amendment. Naturally, state and local governments, and various other public and private entities, dislike these restored protections. Punching holes in these laws -- and the Fifth Amendment -- remains one of their top priorities. 

The Institute for Justice is one organization fighting unjust, and unconstitutional, eminent domain cases across the country. Their website has useful information on current and past court cases and is a great resource for information on the fight against government abuses. We're big fans of IJ's work -- and we hope you will be, too.