St. Mary's Law Journal


The Takings Clause of the Fifth Amendment is a remedy available to citizens for the government's undue interference with private property rights. It operates similarly to an affirmative defense as it entitles citizens to “just compensation” when the government “takes” private property for “public use.” The Takings Clause thus embodies the idea that society values the protection of private property. The Supreme Court of the United States stated the purpose of the Takings Clause is “to bar Government from forcing citizens from bearing public burdens which, in all fairness, should be borne by the public as a whole.” Kelo v. City of New London, Tulare Lake Basin Water Storage District v. United States and Washoe County v. United States show the complexity of the Takings Clause. Kelo addresses the controversy surrounding the constitutional definition of “public use.” Tulare Lake specifically dealt with water law issues and the Endangered Species Act (ESA), but implicated broader public policy concerns with regard to environmental regulation and Fifth Amendment takings of private lands. In Washoe County the government did not physically seize or physically reduce the amount of water available to the plaintiffs from the water source in question. Furthermore, the Court noted that the plaintiffs were not foreclosed from any access to their water rights—only from permission to use government land to utilize those rights. The Kelo and Tulare Lake cases illustrate the expansive powers of the Takings Clause. As the Court continues to hand down decisions interpreting this clause of the Constitution, the power of the federal government continues to ebb and flow. Weighed in the balance, the Tulare Lake decision validated the Constitution's emphasis on property rights; in contrast, the Court in Kelo augmented the power of the government to take property under the rubric of public use.


St. Mary's University School of Law