Fifth Amendment to the United States Constitution

Amendment V (the Fifth Amendment) of the United States Constitution, which is part of the Bill of Rights, is related to legal procedure. Its guarantees stem from English common law. For instance, grand juries and the phrase "due process" both trace their origin to common law.

Eminent domain

The Supreme Court has held that the federal government and each state has the power of eminent domain—the power to take private property for "public use". The Fifth Amendment limits the power of eminent domain by requiring that "just compensation" be paid if private property is taken for public use. The just compensation provision of the Fifth Amendment did not originally apply directly to the states, but the federal courts now hold that the Fourteenth Amendment extended the effects of that provision to the states. The federal courts, however, have shown much deference to the determinations of Congress, and even more so to the determinations of the state legislatures, as to what constitutes "public use". The property need not actually be used by the public; rather, it must be used or disposed of in such a manner as to benefit the public welfare or public interest. One exception that restrains the federal government is that the property must be used in exercise of the government's enumerated powers.

Related Topics:
Eminent domain - Fourteenth Amendment

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The owner of the property that is taken by the government must be justly compensated. Speculative schemes that the owner claims the property was intended for use in need not be taken into account when determining the amount that must be paid. Normally, the fair market value of the property determines "just compensation". If the property is taken before the payment is made, interest (though the courts have refrained from using that term) accrues.

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The federal courts have not restrained state and local governments from seizing privately owned land for private commercial development on behalf of private developers. This was upheld on June 23, 2005, when the Supreme Court issued its opinion in Kelo v. New London. This decision was highly controversial, and, in fact, was made on a narrow vote of 5–4. The majority opinion, by Justice Stevens, found that it was appropriate to defer to the city's decision that the development plan had a public purpose, saying that "the city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue." Justice Kennedy's concurring opinion observed that in this particular case the development plan was not "of primary benefit to . . . the developer" and that if that was the case the plan might have been impermissible. In the dissent, Justice Sandra Day O'Connor argued that this decision would allow the rich to benefit at the expense of the poor, asserting that "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms." She argued that the decision eliminates "any distinction between private and public use of property—and thereby effectively the words 'for public use' from the Takings Clause of the Fifth Amendment".

Related Topics:
June 23 - 2005 - Kelo v. New London - Sandra Day O'Connor

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