A Violation of the Takings Clause by the Fifth Amendment of the United States Constitution - Essay Example

Is Eminent Domain as Practiced Today a Violation of the Takings Clause of the Fifth Amendmentof the US Constitution? Introduction According to Epstein (12), eminent domain refers to the government entity’s right to seize property that is privately owned with the purpose of constructing public facilities. It also refers to the inherent state power to seize private property of a citizen or seize his/her property rights and converts it into state property, without the consent of the owner, for public use. However, the power of eminent domain is subject to specific constitutional limits. It has commonly been argued that eminent domain is a violation of the taking clause of the fifth amendment of the US constitution. The Taking Clause of the US Constitution The purpose of the taking clause featured in the US constitution is to bar the government from forcibly making some people bear public burdens, which is a responsibility of the entire public (Funk 123). On the other hand, the takings clause fully requires compensation whenever a government takes away private property and converts it for public use. Eminent domain gives the government power to take such property, even without fully compensating the private owners, which is contrary to the Fifth Amendment (Greenhut 65). The fourteenth and fifth amendments’ taking clauses of the constitution have similar meaning and effect. However, owners of property can enjoy more protection from the Fifth Amendment takings. Proponents of eminent domain believe that the US constitution’s Fifth Amendment takings clause does not prohibit the government from taking private property (Donahue 32). The requirement of public use is normally viewed like a restriction on the power of government over eminent domain as proponents of eminent domain believe. However, this amounts to violation of the Fifth Amendment because the government can only use that power if its use is meant for public benefit (Malloy 54). Proponents of eminent domain believe that taking away of private property for public use is constitutionally right, as long as it does not cause destruction or injury. Arguments against Eminent Domain In most cases, the government never gives the market value to the owner of a property seized by the invocation of eminent domain. The situation of many individuals that have their properties taken by the government is normally made worse given that some of these properties are what they consider a lifetime investment and therefore beyond monetary value. In this respect, eminent domain denies individuals the right to enjoy whatever they have worked for irrespective of how much treasured their investments are to them (Sheldom 24). This as a result lowers the motivation of hardworking citizens who always live in fear considering that their properties may be taken at any time and without warning. Eminent domain has been applied blatantly with power-hungry and utilitarian justifications. Such events occur for example where large companies that remit more taxes to the government are favored against individuals or smaller organizations to an extent that properties are seized from the later unjustifiably for the benefit of the larger companies as noted by Ryskamp (35). This sometimes is done out of the consideration that larger companies create more employment opportunities compared to smaller ones. Unfortunately the application of eminent domain in this respect is flawed as it considers individuals as fungible or substitutable objects. When the government seizes property based on such logic, it means that the government cares not for the welfare of those whose lives are ruined as a result against the constitutional implication that the individual’s right is absolute. Some quarters have reasoned that eminent domain helps in the redistribution of property and helps in creating equality and equity in the sharing of resources among nationals. This idea is further propagated based on the reasoning that the government helps in bringing efficiency to urban renewal by using the powers of eminent domain (Donahue 67). Modern economic theory such as that postulated by Adam Smith holds that the free market provides greater efficiency in business activities that the government can achieve. Better stated, an organization that thrives because it enjoys the benefits of eminent domain does not necessarily flourish because it functions better than its competitors (Donahue 67). In fact, such a business may not be favored by the forces of supply and demand and therefore may not have the capacity to acquire a given property when subjected to a free and voluntary market environment. Such a business therefore gains squarely from those who worked hard to own the property without exerting considerable effort. No wonder, eminent domain has been branded by the US supreme court as institutionalized theft as seen in the case of Kelo v. New London. Proponents of eminent domain believe that as long as the taking is for public use, the government has the right to take it without the consent of the owners. However, the bill of right with respect to property together with the Fifth Amendment declares that no private property shall be taken over by the government for public use without owners’ consent, which must then be followed by just compensation. Sometimes takings by the government involve demolition of buildings and other properties. Injuries and even deaths may be caused to private owners protesting against such takings hence causing more damage than good in the long run. The lose of life is usually unwarranted especially when individuals affected are right in making airing their views or making their claims against the government. Conclusion Eminent domain refers to the government entity’s right to seize property that is private with the purpose of constructing public facilities. It also refers to the inherent state power to seize private property of a citizen or seize his property rights and convert it, without the consent of the owner, for public use. The US constitution has certain limits to restrain it from acting unjustly. The constitution specifically states that the state must compensate the property owner in property exchange, the property acquired has only to be used for public good, and no person’s property must be taken without following the due process of the law. The proponents of eminent domain believe it is not a violation of the Fifth Amendment because the US constitution’s Fifth Amendment takings do not prohibit the government from taking private property. Even if it is subject to certain constitutional rights, there are limits in such takings. The federal government hence violates the requirements of the Fifth Amendment by taking over private property for public use without owners’ consent, or without fully compensating them. Though proponents of eminent domain believe it is just because it is for the interests of the public, most people strongly oppose it because it violates the Fifth Amendment by failing to fully compensate owners, seek their consent or follow the due process. Eminent domain in spite of its positive side causes a lot of distress to property owners who treasure their generation-old properties and considering that it is economically a less efficient way of redistributing wealth. Work Cited Aspen Publishers. Property: Keyed To Courses Using Kurtz And Hovencamp's Cases And Materials On American Property Law (Casenote Legal Briefs) Edit. 5. New York: Aspen Publishers Online, 2007. Donahue, Charles (Harvard law school). Kelo versus City of New London: Supreme Court of the United States 545 U.S. 469 (2005). Retrieved on June 29, 2011 from http://www.law.harvard.edu/faculty/cdonahue/courses/prop/mat/Kelo.html. Epstein, Richard. Takings: Private Property and the Power of Eminent Domain. Massachusetts: Harvard University Press, 1985. Funk, Bill (The Center for Progressive Report). CPR Perspective: The Takings Clause of the Fifth Amendment. Retrieved on June 29, 2011 from http://www.progressivereform.org/persptakings.cfm (2008). Greenhut, Steven. Abuse Of Power: How The Government Misuses Eminent Domain. Santa Ana: Seven Locks Press, 2004. Malloy, Paul Robin. Private Property, Community Development, and Eminent Domain (Law, Property and Society). Publishing, Ltd., 2008. Merriam, Dwight, Ross Mary Massaron, American Bar Association. Eminent Domain Use and Abuse: Kelo in Context. Chicago: American Bar Association, 2006. Ryskamp, John. The Eminent Domain Revolt: Changing Perceptions in a New Constitutional Epoch. New York: Algora Publishing, 2007. Scaros, E. Constantinos. Understanding the Constitution. Massachusetts: Jones and Bartlett Learning, 2010. Sheldon, Richman (Freedom Daily). Takings: The Evils of Eminent Domain. Retrieved on June 29, 2011 from http://www.fff.org/freedom/0795e.asp (July 1995). Read More