(Episode 22) Raisins, Boats, and Sam's Hypothetical Death Ray: The Fifth Amendment, Part 3 of 3

Welcome to Season 3, Episode 3, Listeners! In this episode, we discuss the Takings Clause of the Fifth Amendment (AKA, eminent domain; AKA, when the government takes your shit). The Takings Clause states:

"...nor shall private property be taken for public use without just compensation."

The basic idea behind the Taking Clause is this: the government shouldn't single people out to bear heavy or excessive burdens, even if it's for a good reason (the "public good"), without compensating those people appropriately. In other words, the government can sometimes take your private property, but there are rules it has to follow if/when it does.

You might immediately think about property in terms of a home, a plot of land, or some interest in land (like a lease or easement). But the takings clause applies to all kinds of private property. Various cases (not all of which are cited here) have found the Takings Clause also applies to corporate stock, farm animals, patents, copyrights, trademarks, trade secrets, and more.

There aren't many "bright-line" rules here, but there are restrictions on what the government can and can't do. For example, even if the government compensates the owner, the government can't take property if it isn't for a public use.

The Takings Clause involves many subquestions, and we attempt to cover a lot of them in this episode. Consider:

1. From where does the government get power to take property?
2. How much can the government burden an individual property owner before it triggers an obligation to pay compensation? (Answer: it depends.)
3. What is a public use?
4. Why does our episode title have to do with boats and raisins? (Death ray not pictured/linked.)

Most of our other sources for this episode came from case law (decisions of SCOTUS). Here are links to the opinions in order from oldest to newest (which, coincidentally, is also in order from most to least difficult to read):

Hadacheck v. Sebastian, 239 U.S. 394 (1915) (one of the earliest attempts to analyze zoning laws and takings; this one has to do with kilns!);
Penn Central Transportation Company v. New York City, 438 U.S. 104 (1978) (dealing with "air rights" above physical property);
Loretto v. Teleprompter Manhattan CATV Corporation, 458 U.S. 419 (1982) (discussing "permanent physical occupation" of property, such as TV/cable lines);
First Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, 482 U.S. 304 (1987) (finding that depriving the Church of use of its property for six years constituted a "taking");
Nollan v. California Coastal Commission, 483 U.S. 825 (1987) (beachfront properties and pathways, amirite?);
Lucas v. South Carolina Coast Council, 505 U.S. 1003 (1992) (depriving an owner of all economically viable use of the property is a taking);
Dolan v. City of Tigard, 512 U.S. 374 (1994) (dealing with conditions on issuing permits);
Kelo v. New London, 545 U.S. 469 (2005) (deciding that a city can take private property and sell it for private development with the ultimate goal of helping the city's bad economy).