Takings Clause

The Takings Clause is the closing phrase of the Fifth Amendment to the U.S. Constitution: "nor shall private property be taken for public use, without just compensation." Ratified in 1791 as part of the Bill of Rights, it originally restrained only the federal government, but the Supreme Court extended it to the states through the Fourteenth Amendment's Due Process Clause in Chicago, Burlington & Quincy Railroad Co. v. Chicago (1897).

The clause does not forbid government appropriation of property; it conditions that power on two requirements: the taking must be for a public use, and the owner must receive just compensation, generally measured by fair market value at the time of the taking.

Takings doctrine distinguishes several categories:

• Direct or physical takings, in which the government formally condemns property through eminent domain or physically occupies it (see Loretto v. Teleprompter Manhattan CATV Corp., 1982, on permanent physical occupations).
• Regulatory takings, in which a regulation goes "too far" in restricting use of property. The doctrine traces to Justice Holmes's opinion in Pennsylvania Coal Co. v. Mahon (1922) and was elaborated in Penn Central Transportation Co. v. New York City (1978), which set out a multi-factor balancing test.
• Per se regulatory takings, where a regulation deprives an owner of all economically beneficial use of land (Lucas v. South Carolina Coastal Council, 1992).
• Exactions, conditions placed on land-use permits, governed by Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994).

The meaning of "public use" was broadly construed in Kelo v. City of New London (2005), which upheld transfers to private developers for economic redevelopment and prompted many states to enact statutory or constitutional limits on eminent domain. More recently, Cedar Point Nursery v. Hassid (2021) classified a California regulation granting union organizers access to farms as a per se physical taking.