This is a common question that gets asked a lot. Most people presume that the government cannot take a private citizen’s property unless it was stolen or some other wrong had been done. That feels right and fair. However, the idea that the United States government can simply take someone’s property whether they like it or not doesn’t sit well with many people in the United States. Consequently, many think eminent domain is not Constitutional. The courts in the United States have addressed the inherent nature of the government’s right to exercise eminent domain. Also, the United States Constitution does address when eminent domain may be used.
The Fifth Amendment to the United States Constitution states that, “No person shall be held to answer for a capital, or otherwise infamous crime…nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” This is the only mention of eminent domain. However, a reader will notice it doesn’t give the government the power of eminent domain. The power of eminent domain was thought to be an inherent power in the Constitution.
The question remains, however, where do the states get the power of eminent domain? This question is answered in two ways. First, the states are still considered somewhat “sovereign” and therefore also have the inherent right of eminent domain. However, the states are also bound by the Fourteenth Amendment through the Supremacy Clause.
The Fourteenth Amendment requires that a state only condemn property for a public use and that just compensation be given in exchange. These are the same limits placed on the Federal government. The Fourteenth Amendment acts as a safeguard against overreaching by state governments.