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![handle is hein.crs/crsahme0001 and id is 1 raw text is: Order Code RS20741
Updated January 15, 2008
The Constitutional Law of
Property Rights Takings: An Introduction
Robert Meltz
Legislative Attorney
American Law Division
Summary
This report introduces the Takings Clause of the Fifth Amendment: [N]or shall
private property be taken for public use, without just compensation. The Clause,
extensively explicated by the courts in recent decades, seeks to strike a balance between
societal goals and the burdens imposed on property owners to achieve those goals. In
filing a taking action in court, the property owner first must surmount threshold
hurdles such as ripeness and the statute of limitations. If successful, the court then will
address whether a taking occurred, the criteria depending on whether the claim is of the
regulatory taking, physical taking, or exaction taking variety. If a taking is found, the
constitutionally required remedy is usually compensation of the property owner, rather
than invalidation of the government action. Takings actions against the United States,
as opposed to state and local governments, have some special procedural and
substantive-law features.
The Fifth Amendment of the U.S. Constitution closes with twelve simple words:
[N]or shall private property be taken for public use, without just compensation.
Long a constitutional sleeper, this Takings Clause has been thrust into the limelight in
recent decades by increased government land use controls combined with a more
conservative Supreme Court interested in securing protections for property owners.
This report covers but the high points in the court-made law construing the Takings
Clause; full coverage would require volumes. Regrettably, too, this case law is not a
model of clarity. Nonetheless, some broad principles have emerged, so that in a few
situations one may predict how a court will rule on a taking action with some
reasonable chance of proving right.
Basics of the Takings Clause
The Takings Clause is a balancing act. It seeks to strike an accommodation between
the goals of the public (as represented by government) and the burdens imposed on
private property owners to achieve those goals. When the private burden is sufficiently](ViewImageLocal?handle=hein.crs/crsahme0001&div=1&collection=&method=preview&ext=.png&size=3)