The Obstacle Course of the Takings Clause The Takings Clause
Needs Rehabilitation JANUARY 01, 2002 by TIMOTHY SANDEFUR
Timothy Sandefur is a contributing editor of Liberty Magazine.
The Fifth Amendment holds that government may not take “private
property . . . for public use without just compensation.” The
Framers knew that seizing a person’s property always violates
his rights, but providing for government payment would at least
protect citizens from the worst sorts of abuses. To the
uninitiated, therefore, it might seem that the Fifth Amendment
protects Americans’ liberty. But the reality is a bit darker.
The power of eminent domain has been expanded far beyond its
original meaning, and is now hedged with so many procedural
pitfalls, that the Takings Clause is now mentioned far more
often in the breach than the observance. The most infamous
Supreme Court takings decision is probably Hawaii Housing v.
Midkiff, a 1984 case in which the Court essentially eradicated
one of the two constitutional limitations on