The Unsexiest Part of the Takings Clause (Part 1)

Ms. Kelo’s “Little Pink House”

The Fifth Amendment’s Takings Clause is one of the foundational supports for our existing structure of private property rights in America. After all, if the government could simply take people’s property without paying for it, no one could feel secure about their holdings or about investing to build their wealth.

Do you trust politicians?

If so, how many have you met?

If politicians could take your property without paying you, how often do you think they’d take your stuff, arguing the taking was “for the greater good”?

So thank goodness for the Takings Clause of the U.S. Constitution’s Fifth Amendment, which provides:

“Nor shall private property be taken for public use, without just compensation.”

The Takings Clause’s four key phrases suggest four fundamental questions:

1. What counts as “private property”?

2. Has that property been “taken”?

3. Is the taking for “public use”?

4. What’s the proper measure of “just compensation”?

These four questions have fueled Supreme Court decisions, economic policy battles, and—let’s be honest—millions of hours of attorney time. But ask most lawyers, and they’ll tell you that only three of them are sexy.

Let’s break down the hot ones.

1. What counts as “private property”?

Is property just the land you own? Your crops? Your body? Depends on who you ask—and how much money is on the line.

Take John Moore. In 1990, doctors at UCLA removed his cancerous spleen and then (without Moore’s knowledge or consent) used his cells to create a lucrative cell line. Moore sued for a share of the profits. The court turned him away penniless. Why? Because body parts are not considered property. The court recognized that huge consequences flow from calling something “property.” For example, if bodies and body parts were considered property, people could claim the right to buy and sell them. And we don’t want to go back to pre–Civil War days when bodies were bought and sold.

Now contrast that with the Great Raisin Rebellion of 2015. (What, you’ve never heard of the Great Raisin Rebellion?) In 2015, Marvin and Laura Horne challenged a federal program that required raisin farmers to hand over a portion of their raisin crop to stabilize prices. The government would sell the seized raisins and sometimes return some of the profit to the farmers. When the Hornes refused, the feds fined them heavily. The Supreme Court sided with the Hornes, holding that raisins are more than just a tasty snack; raisins are property. And when the government takes them, it must pay just compensation for them.

Yeah, for lawyers, the question about whether something counts as “property” is a sexy topic.

2. Has there been a “taking”?

Seems obvious, right? If the government takes your land, that’s a taking. But what if they don’t touch it, but instead tell you what you can and cannot do with it?

Consider Penn Central Transportation Co. v. New York City, which the Supreme Court decided in 1978. The City of New York designated Grand Central Terminal as a historic landmark and barred its owners from building a skyscraper going up from the existing roof line. As you might imagine, air rights (the rights granted under state property law to build vertically on your property) are really valuable in Manhattan. And the City had taken them away. No land was seized, but the owners lost out on major development potential. The Supreme Court sided with the City, holding that reasonable regulations aren’t takings—as long as they don’t go “too far.”

That phrase—“too far”—has kept courts busy ever since.

In Murr v. Wisconsin (decided in 2017), the facts were that the Murr family owned two adjacent riverfront lots. They wanted to sell one, but state regulations blocked the sale because the lot was “substandard” on its own. The kicker? If they’d owned just one of the lots, they could’ve sold it. But because they owned both, the state treated them as a single property—and thereby argued that wiping out the value of one of the lots wasn’t “too far” because, together, the properties were still worth something. The Supreme Court upheld Wisconsin’s rule, holding there was no taking.

Then there’s Cedar Point Nursery v. Hassid (2021). California law allowed union organizers limited access to private farmland during certain hours for labor outreach. The landowners sued, arguing it was a physical invasion. The Supreme Court agreed, holding that even temporary, limited access by outsiders, without the owner’s consent, amounts to a taking. After all, if you can’t keep people off your land, then you really don’t own property.

Together, these cases show that “takings” aren’t just about bulldozers and condemnation notices. They’re about how regulations affect your rights, how access is controlled, and how broadly courts define harm. It’s a high-stakes gray area—and that’s what makes it intellectually sexy.

3. Is the taking for “public use”?

For government to take property by its power of eminent domain, the taking must be for “public use.”

But what does that mean?

The answer: Not as much as you might think.

In Kelo v. City of New London, the Supreme Court’s landmark case about public use, the City passed an ordinance allowing it to take land and homes from private individuals and give them to the private drug company Pfizer. The drug company planned to build a new research facility, which (the City dreamed) would be surrounded by shops and offices, creating new jobs and bringing in more tax revenue. By a 5–4 vote, the Supreme Court ruled for the City, explaining that “economic growth” and “economic development” counted as sufficiently “public” uses.

And now for the rest of the story . . . The City bulldozed an older, charming neighborhood (including Mrs. Kelo’s little pink house), the City’s project fizzled, Pfizer walked, and today stray cats roam the streets where families had lived for generations.

Kelo is perhaps the one and only eminent domain case that still rings a bell for people who aren’t lawyers. The public outcry was massive. State legislatures changed state laws, attempting to prevent these kinds of transfers from one private party to another private party.

Why do the first three phrases of the Takings Clause—the questions not dealing with compensation—get so much press?

These three questions are binary. The court must decide one way or the other. It’s either “yes,” you can keep your raisins or get paid for them; or “no,” you don’t own your removed spleen. There are well-defined winners and losers, and we like games with winners and losers.

Then there’s the whole American Revolution, Star Wars thing going on. We like rooting for the scrappy underdog against the evil empire. We want to see the little guy win against the overbearing government—to be there when the judge rules, “Sorry, Empire, you can’t take this poor family’s property.”

Compare that with the result in a just compensation case: “Yes, Empire, you can take the land. I know you only wanted to pay $50,000. The family says it’s worth $500,000. The jury says it’s worth $250,000, so that’s what they’ll get.” Yeah, it’s not exactly a Braveheart moment, not the stuff of dreams.

Next week, we’ll dive into “just compensation,” what makes it so unsexy, and why it’s the most important question in nearly every takings case.

Cobb & Johns remains committed to protecting property rights and defending clients against unjust claims. For more information, please contact us at 512-399-3150 or visit www.cobbjohns.com.