Amendment 5 — Public Use And Takings Clause

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Fifth Amendment :

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Just Compensation Clause explicitly requires that the taking of private property be for a public use; the government cannot deprive anyone of their property for any reason other than a public use, even with compensation.[1](https://www.law.cornell.edu/constitution-conan/amendment-5/public-use-and-takings-clause#fn1amd5 " Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158–59 (1896); Cole v. La Grange, 113 U.S. 1, 6 (1885). ") The question of whether a particular intended use is a public use is clearly a judicial one,[2](https://www.law.cornell.edu/constitution-conan/amendment-5/public-use-and-takings-clause#fn2amd5 " City of Cincinnati v. Vester, 281 U.S. 439, 444 (1930) ( “It is well established that in considering the application of the Fourteenth Amendment to cases of expropriation of private property, the question what is a public use is a judicial one.” ). ") but the Court has always granted a high degree of deference to legislative determinations,[3](https://www.law.cornell.edu/constitution-conan/amendment-5/public-use-and-takings-clause#fn3amd5 " Kelo v. City of New London, 545 U.S. 469, 482 (2005). The taking need only be “rationally related to a conceivable public purpose.” Id. at 490 (Kennedy, J., concurring). ") stating that “[t]he role of the judiciary in determining whether that power is being exercised for a public use is an extremely narrow one.” [4](https://www.law.cornell.edu/constitution-conan/amendment-5/public-use-and-takings-clause#fn4amd5 " Berman v. Parker, 348 U.S. 26, 32 (1954) (federal eminent domain power in District of Columbia). ") When state action is challenged under the Fourteenth Amendment , the Court also defers to the highest court of the state in resolving such an issue.[5](https://www.law.cornell.edu/constitution-conan/amendment-5/public-use-and-takings-clause#fn5amd5 " Green v. Frazier, 253 U.S. 233, 240 (1920); Vester, 281 U.S. at 446. See also Haw. Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (appeals court erred in applying more stringent standard to action of state legislature). ") In its 1908 decision Chicago, B. & Q. R.R. v. City of Chicago, the Court noted that, “[n]o case is recalled where this court has condemned as a violation of the Fourteenth Amendment a taking upheld by the state court as a taking for public uses . . . .” [6](https://www.law.cornell.edu/constitution-conan/amendment-5/public-use-and-takings-clause#fn6amd5 " Hairston v. Danville & W. Ry., 208 U.S. 598, 607 (1908). An act of condemnation was voided as not for a public use in Mo. Pac. Ry. v. Nebraska, 164 U.S. 403 (1896), but the Court read the state court opinion as acknowledging this fact, thus not bringing it within the literal content of this statement. ")

In a 1946 case involving federal eminent domain power, the Court cast doubt upon the power of courts to review the issue of public use, stating “[w]e think that it is the function of Congress to decide what type of taking is for a public use and that the agency authorized to do the taking may do so to the full extent of its statutory authority.” [7](https://www.law.cornell.edu/constitution-conan/amendment-5/public-use-and-takings-clause#fn7amd5 " United States ex rel. TVA v. Welch, 327 U.S. 546, 551–52 (1946). Justices Stanley Reed and Felix Frankfurter and Chief Justice Harlan Stone disagreed with this view. Id. at 555, 557 (concurring). ") While there is some suggestion in United States ex rel. TVA v. Welch that “the scope of the judicial power to determine what is a ‘public use’” may differ between Fifth and Fourteenth Amendment cases, with greater power in the latter type of cases than in the former,[8](https://www.law.cornell.edu/constitution-conan/amendment-5/public-use-and-takings-clause#fn8amd5 " Welch, 327 U.S. at 552. ") Welch also cautions great judicial restraint in evaluating “public uses” more broadly.[9](https://www.law.cornell.edu/constitution-conan/amendment-5/public-use-and-takings-clause#fn9amd5 " See Berman, 348 U.S. at 32 ( “The role of the judiciary in determining whether that power [of eminent domain] is being exercised for a public purpose is an extremely narrow one.” ). ") Once it is admitted or determined that the taking is for a public use and is within the granted authority, the necessity or expediency of the particular taking is exclusively in the legislature, or the body to which the legislature has delegated the decision, and is not subject to judicial review.[10](https://www.law.cornell.edu/constitution-conan/amendment-5/public-use-and-takings-clause#fn10amd5 " Rindge Co. v. L.A. Cnty., 262 U.S. 700, 709 (1923); Bragg v. Weaver, 251 U.S. 57, 58 (1919); Berman, 348 U.S. at 33. Midkiff, 467 U.S. at 242–43 ( “When the legislature’s purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings . . . are not to be carried out in federal courts.” ) ")

At an earlier time, the prevailing judicial view was that the term “public use” was synonymous with “use by the public” and that, if there was no duty upon the taker to permit the public as of right to use or enjoy the property taken, the taking was invalid. But the Court rejected this view.[11](https://www.law.cornell.edu/constitution-conan/amendment-5/public-use-and-takings-clause#fn11amd5 " Clark v. Nash, 198 U.S. 361 (1905); Mt. Vernon-Woodberry Cotton Duck Co. v. Ala. Interstate Power Co., 240 U.S. 30, 32 (1916). ") The modern conception of public use equates it with the police power in furtherance of the public interest. No definition of the reach or limits of the power is possible, the Court has said, because such “definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. . . . Public safety, public health, morality, peace and quiet, law and order—these are some of the . . . traditional application[s] of the police power . . . .” [12](https://www.law.cornell.edu/constitution-conan/amendment-5/public-use-and-takings-clause#fn12amd5 " Berman, 348 U.S. at 32. ") Because the legislature has authority to effectuate these matters, its power to achieve them by exercising eminent domain is established. As the Supreme Court observed, “For the power of eminent domain is merely the means to the end.” [13](https://www.law.cornell.edu/constitution-conan/amendment-5/public-use-and-takings-clause#fn13amd5 " Id. at 32–33. ") Subsequently, the Court added as an indicium of “public use” whether the government purpose could be validly achieved by tax or user fee.[14](https://www.law.cornell.edu/constitution-conan/amendment-5/public-use-and-takings-clause#fn14amd5 " Brown v. Legal Found. of Wash., 538 U.S. 216, 232 (2003). Reasonable user fees are not takings that necessitate just compensation. See United States v. Sperry Corp., 493 U.S. 52 (1989) (holding that a 1% user fee deducted from awards granted by an international tribunal to cover the costs of administering that tribunal did not constitute a taking). ")

Traditionally, eminent domain has been used to facilitate transportation, the supplying of water, and the like,[15](https://www.law.cornell.edu/constitution-conan/amendment-5/public-use-and-takings-clause#fn15amd5 " E.g., Kohl v. United States, 91 U.S. 367 (1876) (public buildings); New Orleans Gas Co. v Drainage Comm’n, 197 U.S. 453 (1905) (city drainage system); Chi., Milwaukee, & St. Paul Ry. v. City of Minneapolis, 232 U.S. 430 (1914) (canal); Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685 (1897) (condemnation of privately owned water supply system formerly furnishing water to municipality under contract); Mt. Vernon-Woodberry Cotton Duck Co. v. Ala. Interstate Power Co., 240 U.S. 30 (1916) (land, water, and water rights condemned for production of electric power by public utility); Dohany v. Rogers, 281 U.S. 362 (1930) (land taken for purpose of exchange with a railroad company for a portion of its right-of-way required for widening a highway); Del., Lackawanna & W. R.R. v. Town of Morristown, 276 U.S. 182 (1928) (establishment by a municipality of a public hack stand upon driveway maintained by railroad upon its own terminal grounds to afford ingress and egress to its patrons); Clark v. Nash, 198 U.S. 361 (1905) (right-of-way across neighbor’s land to enlarge irrigation ditch for water without which land would remain valueless); Strickley v. Highland Boy Mining Co., 200 U.S. 527 (1906) (right of way across a placer mining claim for aerial bucket line). In Mo. Pac. Ry. v. Nebraska, 164 U.S. 403 (1896), however, the Court held that it was an invalid use when a state attempted to compel, on payment of compensation, a railroad, which had permitted the erection of two grain elevators by private citizens on its right-of-way, to grant upon like terms a location to another group of farmers to erect a third grain elevator for their own benefit. ") but its use to establish public parks, to preserve places of historic interest, and to promote beautification has substantial precedent.[16](https://www.law.cornell.edu/constitution-conan/amendment-5/public-use-and-takings-clause#fn16amd5 " E.g., Shoemaker v. United States, 147 U.S. 282 (1893) (establishment of public park in District of Columbia); Rindge Co. v. L.A. Cnty., 262 U.S. 700 (1923) (scenic highway); Brown v. United States, 263 U.S. 78 (1923) (condemnation of property near town flooded by establishment of reservoir in order to locate a new townsite, even though there might be some surplus lots to be sold); United States v. Gettysburg Elec. Ry., 160 U.S. 668 (1896), and Roe v. Kansas ex rel. Smith, 278 U.S. 191 (1929) (historic sites). When time is deemed to be of the essence, Co