Historical Context of the Fifth Amendment
The Fifth Amendment's Takings Clause stems from common law and natural equity principles. Justice Joseph Story described it as universal law in his "Commentaries on the Constitution of the United States," arguing that without this principle, other rights would be worthless.
The government's power to take private property was seen as inherent. The Supreme Court in the 1898 case of Backus v. Fort Street Union Depot Co. stated that eminent domain can only happen with "just compensation." No excess, no skimping โ just what's fair.
In Armstrong v. United States, the Court clarified further. They said the doctrine was there to stop the Government from making some people bear the full burden without spreading it out among everyone.
Federal eminent domain is usually tied to something Constitutionally granted, like building infrastructure or securing public safety. But, that doesn't mean it's unlimited. The Supreme Court made sure to slap down any state attempts to override this federal power.

Supreme Court Interpretations
Key Supreme Court cases have shaped the interpretation of eminent domain:
- Kohl v. United States (1876): The Court affirmed that the federal government could exercise its eminent domain powers just like the states. This solidified the notion that this power is an inherent right of the federal government.
- Boom Co. v. Patterson (1879): The Supreme Court made it clear that the power of eminent domain was an attribute of sovereignty. If you're an independent government, you automatically have this power.
- Kelo v. City of New London (2005): This controversial decision expanded the definition of "public use" to include economic development. The Supreme Court sided with New London, holding that transferring land from one private owner to another for economic development qualified as "public use."
Justice Sandra Day O'Connor's dissent in Kelo warned that under this ruling, any private property could be taken and given to another private entity if it promised better economic use. The traditionally narrow interpretation of public use was blown wide open.
This case has become a prime example of government overreach under the guise of public benefit. It's been heavily criticized for undermining property rights and allowing undue governmental intrusion.
Federal vs. State Powers
The federal government's eminent domain power was dormant outside the District of Columbia until the Supreme Court's 1876 decision in Kohl v. United States unfurled its reach. The Fifth Amendment's Just Compensation Clause ensures fairness.
The Fourteenth Amendment initially didn't mess much with state powers of eminent domain. But by the 1890s, thanks to Chicago, B. & Q. R.R. Co. v. City of Chicago, the Supreme Court ruled that taking property without proper compensation was a due process violation under the Fourteenth Amendment. This extended the federal Just Compensation requirement to the states.
States can't arbitrarily decide what's "just" according to their whims. However, it didn't necessarily mean all state protections and compensatory measures were identical to federal standards. States often have additional layers of legalese stipulating how and when eminent domain can be executed โ but they can't dip below the federal floor established by the Constitution.
States usually possess de facto control, using legislation to delegate eminent domain powers to municipalities or local agencies. While states can fine-tune the gears of their eminent domain machinery, they can't dismantle the overarching federal frameworks.
Local laws sometimes even delegate these powers to private corporations, such as railroads or utilities, provided they serve a public purpose. The aim is allegedly to facilitate essential services, but the potential for abuse is high.

Legislative Delegation and Public Use
After Kelo v. City of New London, the concept of 'public use' expanded to include economic development. If the government can spin a tale about job creation or boosting the local economy, they can justify seizing land.
Governments frequently delegate their eminent domain powers to other entities โ many of which are private corporations. The government can authorize a utility company, a railroad, or even a tech firm to evoke eminent domain, provided there's a "public use" earmarked.
New York's Electricity Law is an example. Under its Transportation Corporations Law (TCL), electric and gas corporations can use eminent domain if the property is necessary for corporate purposes. The TCL declares these utilities' actions, like constructing power lines or pipelines, as public uses.
The legislative body delegating this power must underscore its validity as serving a public need. The Supreme Court mandates that any lawful delegation must be buttressed by distinguishable public purpose. Berman v. Parker endorsed urban renewal, reasoning that public welfare isn't just physical but can also be aesthetic and monetary.1
Whenever legislative bodies delegate eminent domain, they embed checks and balances, ostensibly to prevent abuse. Public hearings, advanced notices, and offers of just compensation are part of the script. Nonetheless, property owners often find themselves entrapped in bureaucratic webs, spending fortunes to defend their homesteads against corporate takeover.
Post-Kelo, many states introduced laws to rein in eminent domain abuses, reinforcing protections for property owners. While some states proposed outright bans on using eminent domain for economic development, others provided mere window dressing, ensuring loopholes remained.
The intent of our Founding Fathers was clear: protect property rights. It's up to us to safeguard this principle, lest it be sullied under the schemes of those in power.

Controversies and Criticisms
The Kelo v. City of New London case exemplifies eminent domain controversies. The city seized homes to sell land to Pfizer for a corporate facility, justifying it as economic development. This prioritized corporate interests over individual rights.
Justice O'Connor's dissent warned that under the ruling, any property could be taken if someone could imagine a more economically beneficial use. This stretched the "public use" definition beyond recognition.
Eminent domain takings often disproportionately affect poor and minority communities. Ilya Somin, a law professor, noted how these takings hit the poor, racial minorities, and politically weak harder. Communities with fewer resources make easier targets.
Forced relocations displace people and damage social connections built over decades. The Kelo scenario resulted in a 90-acre lot, once a community, now abandoned.
Critics argue broadening 'public use' interpretation weakens property rights. When private development projects are framed as public benefit, it's often not the displaced residents who benefit.
These actions can breed mistrust in government. The Constitution provides property rights, but rulings like Kelo suggest those rights can be overridden. This raises concerns about preserving private property against government encroachment.
Modern Applications and Challenges
Modern eminent domain use extends to various infrastructure projects, from highways to rail lines. While aimed at improving transportation and modernization, these often impact individual property owners.
Environmental conservation has entered the eminent domain debate. While there's public benefit in preserving habitats or ensuring clean water, landowners see it as infringing on their rights.
Urban development remains contentious. Governments argue for revitalization projects, but this echoes the Kelo case, potentially favoring private gain over public utility.
Climate change poses new challenges, with potential seizures for flood control or climate resilience projects. This affects those in vulnerable areas like coastlines or near rivers.
Inverse condemnation claims are increasing, where property owners sue the government for effectively taking their property without compensation. This includes issues like:
- Flooding from government-built dams
- Restrictions under environmental laws
The National Trails System Act, converting old railroad tracks to public trails, has led to lawsuits from adjacent landowners claiming unfair land taking.
Modern eminent domain applications span:
- Infrastructure
- Conservation
- Urban development
- Climate mitigation
While these causes may seem noble, they often lead to ethical controversies and conflicts between public needs and individual rights.1

The balance between government power and individual property rights remains delicate. Property rights protection against overreach continues to be a fundamental principle.