Political Science 2212
State & Local Government W01 Spring 2013
When Can the Government Take the Property of a Citizen Without His Consent?
One of the more controversial Government actions is its ability to exercise the power of eminent domain to take control of property that belongs to an individual or private entity against their will. “Eminent domain, broadly understood, is the power of the state to seize private property without the owner's consent” (WordNet).
This paper will examine the elements of eminent domain and what protections are in place for citizens that may be effected by it, identify types of transactions that are typically involved and accepted in eminent domain cases and discuss what the citizens should expect to receive as compensation even though they have lost the property due to some of the broad definitions of the elements. Any time the government is taking the property of an individual, without his consent, it is a controversial matter. Many politicians and citizens agree that it was necessary to establish a method of acquiring property for the needs of the common good of the community even when there is a lone hold out property owner. It has been held that the power of eminent domain can only be exercised after meeting the protection standards established under the Fifth Amendment of The United States Constitution. We have been conditioned through the media that the Fifth Amendment protects us against self-incrimination “I plead the fifth”. Self-Incrimination is an important aspect but most people don’t realize that the Fifth Amendment has a “taking clause” designed to protect the property owners.
“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 (United States Constitution Fifth Amendment). The Amendment initially only applied at a federal level until passage of the Fourteenth Amendment in which due process and equal protection were made applicable to the states. Taken at face value, the Fifth Amendment taking clause can be broken down into four basic elements: Nor shall (1) private property be (2) taken for (3) public use without (4) just compensation
The first is private property, it is self-explanatory and the definition is fairly narrow today although its prior applications were more expansive for example one of the biggest issues with emancipation of slaves was the one time belief that they were seen as property and not as individuals and this status protected the property owner. It was this view that brought about the Emancipation Proclamation and passage of the Thirteenth Amendment. Private property is defined as: Private property N-land or belongings owned by a person or group and kept for their exclusive use (Dictionary.com) The next element is the taking of the property. The property my be taken from the owner without their consent in order to make an improvement of some sort that will have a beneficial result for the community. It’s important also to note that property owner is not only in jeopardy of losing their property to the government but that it may lose to a private developer for the purpose of an improvement that might add value to the city for example in the form of taxes. In the case of eminent domain the property is taken without the consent of the owner of the property. If the owner were to consent or agree to a payment then it is...