This is an interesting question. Neither the Federal Constitution nor the North Carolina Constitution gives the government the express power of eminent domain. When you read or hear about someone referring to an “express” power in legal terms, that is referring to a power that is given by direct and appropriate language that specifically refers to that power. Express language in the U.S. Constitution and North Carolina’s Constitution that grants the power of eminent domain is nonexistent.

However, the analysis does not stop there. Although neither constitution contains express language that grants the power of eminent domain, the power of eminent domain is regarded as an inherent power of the government. Simply put, an inherent power exists because the government must exercise it to exist. Some might try to point towards the “takings clause” of the Fifth Amendment to show where the power of eminent domain is expressly given to the government. That would technically be wrong.

The “takings clause” only curbs the government’s ability to exercise the power of eminent domain. The Fifth Amendment states “…nor shall private property be taken for public use, without just compensation.” That language is the only phrase in the Constitution that mentions anything about the government’s power of eminent domain, and that language only serves to place restrictions on when the government can take property.

Even though the power of eminent domain is considered an inherent power held by both the Federal government and the States, the Supreme Court of the United States has upheld the government’s ability to exercise the power of eminent domain on a few occasions. The first occasion wasn’t until 1876 in Kohl v. United States. There, the Court stated that the power of eminent domain was “…essential to its independent existence and perpetuity.” Kohl v. United States, 91 U.S. 367, 371 (1875).  Although it might not be expressly given in the Constitution, the power of eminent domain doesn’t contradict the Constitution of either the Federal Government or North Carolina; therefore, it is constitutional so long as the property is taken for a public use and just compensation is given for its procurement.