The government’s right of eminent domain does not come from the United States Constitution as some might think. It is also not an invention of the America’s Founding Fathers. Instead, the right of eminent domain is an ancient principle that goes back to the days of Rome. The original Latin term was Eminenes Dominium which referred the Classical right of the Roman Government to take property with or without compensation.
The idea that kings were sovereign and owned all the land prevailed during the medieval period. They “rented” the land to other nobles who then “rented” their land to people of lesser degree. This was called the feudal system. However, the feudal system and its downfalls led our founding fathers to place limitations on the government through the Constitution. Although the founding fathers saw the need for something like eminent domain, they also understood that government should not have the absolute ability to take everyone’s land whenever it felt like it.
Is there an actual document that expressly gives government the power of eminent domain? The answer is no. The Fifth Amendment stipulates the limitations that the government has when exercising eminent domain when it states “[N]or shall private property be taken for public use, without just compensation.” Although the Constitution limits the use of eminent domain, it is regarded as an inherent power. An inherent power is a power that a government has because it is necessary for a sovereign government to function.
One of the powers that our government has been given is to ensure that commerce can be carried out in our country. It is therefore necessary to have the power to build roads to facilitate commerce. Without the ability to exercise eminent domain, the government is hampered in its duties. Consequently, some might argue that the power of eminent domain exists through the Necessary and Proper Clause in the Constitution. However, the courts have denied that analysis. Instead, the courts consistently agree that the power of eminent domain is an inherent power.