Eminent Domain

                The topic of discussion for this Constitution Monday comes from the Fifth Amendment to the U.S. Constitution:  “No person … shall [have] private property … taken for public use, without just compensation.”  This provision – known as the Takings Clause - guarantees each person to be safe from claims of eminent domain against their property without being compensated for it.

                W. Cleon Skousen wrote, “This type of provision appeared in the early Roman law and was also incorporated in the Magna Charta.  Ancient kings and emperors, who considered the life and property of their people to be subject to their whims, often exercised their sovereign powers to expropriate or confiscate the land of their subjects.  Modern governments tend to do the same.  This provision was inserted into the Constitution to protect American citizens from this type of abuse….”  (See The Making of America – The Substance and Meaning of the Constitution, pp. 706-707.)

                Douglas W. Kmiec of The Heritage Foundation explained the Takings Clause:  “The drafter of this clause, James Madison, opined:  `A Government is instituted to protect property of every sort…  This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.’  Against the proposition that the singular purpose of our government is the protection of property, there is the curiosity that the original Constitution scarcely mentions the term.  Although at least two states demanded every other provision that we know today as the Bill of Rights, not one requested the Takings Clause.  What explains the anomaly?

                “The beginning of an answer can be found in Alexander Hamilton’s observation that `the true protection of men’s rights are to be found not among old parchments, or musty records.  They are written … in the whole volume of human nature … and can never be erased or obscured.’  Alexander Hamilton was, of course, referring to the natural law, which is one of the doctrinal foundations of the United States set out in the Declaration of Independence.”  (See The Heritage Guide to the Constitution, pp. 341-342.)