FEDERAL CONSTITUTIONAL LIMITS

As interpreted by the United States Supreme Court, the U.S. Constitution does little or nothing to prevent government units from taking private property. Instead, the Constitution requires that the government pay for what it takes. The Fifth Amendment Takings Clause “does not prohibit the taking of private property…it is designed not to limit the government’s interference with property rights per se, but to secure compensation in the event of otherwise proper interference amounting to a taking.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, (1987) 484 U.S. 304, 314-315, 107 S. Ct. 2378.

One limitation which appears in the text of the Fifth Amendment Taking Clause is that the “taking” must be for a “public purpose.” In the hugely controversial decision, Kelo v. City of New London (2005) 545 U.S. 469, 124 S. Ct. 2655 , the U.S. Supreme Court effectively removed this as a limit on government power. In Kelo, the Court held that a city could take a private residence, and give it to a private real estate developer, as long as the city said that it was motivated by a desire for economic redevelopment. As a practical matter, this puts few, if any, limits on the government’s power. Please note, however, that in California a referendum has been passed, after Kelo, to limit the damage done by that decision.

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