Is Eminent Domain in the Constitution?

Eminent domain is a legal right of the federal government that allows government entities to acquire the property of citizens for public use. There are terms that the government and citizens must meet in eminent domain cases. Those terms are outlined in the United States Constitution and have been amended through a series of court decisions since the Constitution was written.

About Eminent Domain in the Constitution

The power of eminent domain was established in the Constitution’s original Bill of Rights. In what is known as the “takings clause” of the Fifth Amendment, it is stated: “…nor shall private property be taken for public use, without just compensation.”

The takings clause defined the essential basis of eminent domain: Public use and just compensation. The government is only permitted to take property from a citizen if the intention is to use the property for a purpose that benefits the public (rather than private interests), and if the property owner is compensated properly. These terms are open to interpretation and have inspired various disputes throughout the history of the country. Many eminent domain cases go to court as a person whose property is subject to eminent domain may dispute the case. These cases are often complex as there is little language defining the specifics of "just compensation" and "public use."

Changes in the Courts

Beyond the initial creation of eminent domain in the takings clause, the modern definition of eminent domain has been crafted through years of legal action. Some of the most significant cases related to eminent domain involved disputes around the definitions of “public use” and “just compensation,” and the fairness of eminent domain in general.

One of the first cases that challenged the principle of eminent domain was Kohl v. United States in 1875. In this case, a property owner opposed the federal government’s legal right “to condemn land in Cincinnati, Ohio for use as a custom house and post office building,” according to the United States Department of Justice’s page, “History of the Federal Use of Eminent Domain.” The use of eminent domain was defended by the Supreme Court, which upheld that it is a government right as long as the qualifications of public use and just compensation are met. Eminent domain and the government’s power to exercise it has been challenged and reinterpreted several times since Kohl v. United States.

Contact Allen Semelsberger & Kaelin, LLP if you are involved in an eminent domain case. Our attorneys can help you understand your rights and protect those rights throughout your case.