Eminent Domain

Where does eminent domain power come from?

By Brian Farkas, Attorney
By what right can the U.S. government, or a state government, claim ownership of property that is currently yours?

Eminent domain, otherwise known as the power of the state to take private land, is a concept brought to the United States from early modern Europe. The common law concept is intended to give the government the ability to circumvent private property interests when necessary to benefit the society as a whole.

The Fifth Amendment to the Constitution acknowledges the federal government’s inherent ability to take possession of lands, but also gives some degree of protection to citizens. It provides that “private property [shall not] be taken for public use, without just compensation.”

In other words, if the government seeks to take private land for the public benefit, it must provide payment that compensates the owner of that land. Like all of the Amendments in the Bill of Rights, this provision aims to protect people from government overreach.

State governments also have the power to take private lands for public benefit within their borders, when the government deems it necessary to do so. States have these powers either through their own state constitutions or through statutes.

The Fourteenth Amendment’s Due Process Clause makes the Fifth Amendment’s guarantee of “just compensation” applicable to the states. In other words, the states, too, must pay reasonable market value to any private person whose land it exercises this power over and takes.

In short, the concept of eminent domain predates the United States. While American courts give federal and state governments wide latitude in their inherent power, they also enforce the ability of private persons to recoup “just compensation” for the taking of their property.

Go to the main eminent domain FAQ page.

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