Government Rights vs the 5th Amendment

The government maintains the right to take private property from their citizenry for public use under the rule of Eminent Domain. This idea seems to resonate with a more classical time under the rule of Kings and nobleman; however, this practice is used today and is allowed under the protection of the law.

In order for the government to acquire private property within the protective clause of eminent domain, there are several factors that must be met. First, property must be determined to be privately owned. This private property extends beyond land and water rights, to also include tangible items such as equipment and the ownership of stocks or options in a corporation.

Second, the government, local, state or federal must actively take control of the specified property. This may be classified as either a complete or partial possession. Eminent domain that is characterized as partial use may include when the actions of the government degrade or lower the value or usefulness of a privately held property. A reduction of enjoyment of private property due to government action also falls within the guidelines of eminent domain.

Of most importance in the government’s right to eminent domain is for the property to be used for the benefit of the public, not for an individual. The test to determine what qualifies as public use under eminent domain has changed over time; however, it is generally held that there must be a direct benefit to the public. This benefit may be for general use as in the creation of a park but may also extend to adding to the general betterment of aesthetics of a community.

The Fifth Amendment of the United States Constitution states that no citizen shall “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 idea of eminent domain seems to be in direct contrast to this right. It specifically allows the government to do just that, take away privately held property for public use. However, the government’s entitlement to this right is legitimized by the forth element that requires that just compensation be paid to the owner. This compensation must be set at a fair market price for both the public and for the owner. The price shall be determined at a fair value as would have been set if the property has been negotiated for sale on the open market.

The fault of the policy of eminent domain exists in the valuing of compensation for the property. Although the property owner may receive a fair value price for their property, they lack the power to refuse the loss. The government retains the right to take possession even in the case where the true property owner doesn’t want to sell. The owner is forced to accept the compensation for the loss of their property.