Guest Essayist: Andrew Langer, President of the Institute for Liberty

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment V to the Constitution, among longest in the Bill of Rights, is also one of the richest in terms of content.  A transitional amendment, it is unique in that it encompasses restraints on both criminal and civil powers of government—transitionally linking the two.  The first half of the amendment serves as the bedrock of protections for accused individuals under the criminal code, while the second half lays out the bedrock principles underlying private property rights.

Americans are all-too familiar with the criminal elements within the 5th Amendment.  These were borne out of the principles of English common law, stemming from the Magna Carta—principles that the revolutionary founders had seen eroded by the Crown prior to and during the War for American Independence.  Given the tremendous difficulty many of the founders had in seeing power concentrated in a single federal government, they felt it important enough to further constrain those powers and enshrine basic protections to accused persons within the Bill of Rights.

The assurance of a grand jury indictment before trial, the assurance of not being subjected to perpetual trial should the government not achieve a guilty verdict, the assurance of not being made to testify against oneself, these all had roots in English common law—very basic rights that represent a check on government power run amok.  The idea of the grand jury process helps to ensure that a single government official cannot arrest an individual without merit.

The prohibition against “double jeopardy” insures that these same government officials cannot hold an individual in perpetuity, for multiple trials, when a jury of his or her peers has found them not guilty of a particular crime.  And the prohibition against self-incrimination is a recognition of the dignity of the individual in not being forced to act against his own interest in self-preservation and liberty.

The statement on due process really forms the transition between civil and criminal in the 5th Amendment.  In terms of criminal jurisprudence, obviously an individual accused of a crime must be afforded some fair process by which his case is heard, ensuring that his team is able to amount a fair defense.

But then the 5th Amendment grabs onto a core value of the American founding:  the importance of private property rights.  Having its basis in John Locke’s theory that government’s role is to protect life, liberty, and property, Jefferson has originally written that our inalienable rights were life, liberty, and the pursuit of property.  Private property undergirds the foundation of the Republic—scholars such as Hernando DeSoto have written that property rights are essential to the stability and prosperity of any free society.

As it happens, it is these rights that have come under the greatest siege in the last century and a half—eroded in an incredible number of ways, largely because they are the among the least understood rights.  As it happens, the Bill of Rights sets out very simple protections.

Government has the power to take private property from people.  We cede that power to it in the 5th Amendment.  But three things have to happen in order for that “taking” to be lawful:

  1. First, the taking has to be for a “public use”. Traditionally, this was for things like public buildings, roads, even public spaces like parks;
  2. Due Process has to be accorded to the property owner.  They have to be given a fair hearing or process by which they can negotiate with the government, perhaps to avoid the taking entirely;
  3. Should 1 and 2 be satisfied, “just” compensation has to be paid to a property owner, generally what a willing buyer would pay to a willing seller.

For many years, litigation and legal debates arising under the 5th Amendment’s property rights provisions centered on what constituted a taking and whether or not property owners had been afforded due process—and at which point a landowner could seek compensation from the government.

A government need not physically occupy or affirmatively confiscate property, either.  As government has grown, the reach of that government into the daily lives of property owners has similarly grew—and the concept of “regulatory takings” was made manifest.  In the seminal 1922 Supreme Court case of Pennsylvania Coal v. Mahon the High Court stated clearly that when a regulation goes “too far” it will be considered a taking, triggering the 5th Amendment’s requirements.

Thus, under laws like the Clean Water Act and the Endangered Species Act, when a piece of property is restricted from substantially all uses, the landowner can seek just compensation for the taking of his property under the 5th Amendment.

What has come to the forefront in recent years is the long-time debate over what constitutes a “public use”.  In the 2005 Supreme Court case, Kelo v. City of New London, the High Court ruled that the home that elderly Suzette Kelo had lived in since she was a girl could be taken by the City of New London, CT to make way for a parking lot for a Pfizer manufacturing facility.

The public outrage was palpable—after all, the taking would directly benefit a private entity, the Pfizer Corporation, and not constitute a “public use” as stated in the 5th Amendment.  People wondered how the Supreme Court could have ruled this way.

The problem was that this decision was the end-result of 130 years of Supreme Court erosion of the “public use” doctrine.  Starting with a line of cases in which the High Court ruled that it was appropriate for government entities to take private property for quasi-private/quasi-public utility companies, and leading into years of cases in which the court decided that it was OK for localities to condemn wide swatches of private property in the name of urban redevelopment, we were left with an entirely different interpretation of “public use”.

By 2005, the Supreme Court’s precedent said that so long as there was a nebulous “public benefit,” the Constitution’s requirement of a taking for “public use” was satisfied.  Generally, this means that if there is a net increase in a city’s tax rolls, the 5th Amendment is satisfied.

The problem wasn’t that the High Court was making new law in Kelo.  The problem was that the High Court didn’t have the courage to over-rule years of bad law.

The 5th Amendment’s property rights protections are constantly under siege.  If we hope to keep the Republic, we must defend those protections earnestly and vigorously.

Andrew Langer is President of the Institute for Liberty

11 replies
  1. Joe Short
    Joe Short says:

    Wow! Fantastic article, especially the conclusion: “If we hope to keep the Republic, we must defend those protections earnestly and vigorously”

    • Barb Zakszewski
      Barb Zakszewski says:

      I agree with Joe, GREAT article and wonderful, insightful analysis. It really does all boil down to property rights, if government can confiscate our property either via the eminent domain principles, or via property taxes, then there really is not much left for us, is there? We absolutely MUST defend our rights and protections!!! Education is the key!!!

      • yguy
        yguy says:

        [] if government can confiscate our property [] via the eminent domain principles, [] then there really is not much left for us, is there?

        You want an absolute prohibition on government takings?

  2. Ron Meier
    Ron Meier says:

    Too bad that Jefferson’s initial writing of “pursuit of property” didn’t stand, instead of “pursuit of happiness.” The pursuit of “happiness” has been interpreted by the left in ways never intended by our founders, similar to the misintrepretaion of the “general welfare” clause.

  3. Andrew Langer
    Andrew Langer says:


    I think Barb was just being inartful in her prose, and not offering a blanket prohibition on takings. I believe she was merely saying that government’s power to take private property must be severely constrained and follow the precepts laid out by the founders, or else that power is apt to be abused.

    Keep in mind that the various Constitutions of our Cold War enemy, the Soviet Union, guaranteed all manner of rights. One that was not guaranteed was the right to hold and enjoy private property (in fact, Marx said that the aim of Communism could be summed up in a single sentence: the abolition of private property).

    This meant, in the end, that while free speech, freedom of expression, freedom of religion, etc, could be proffered by the Soviet State, with that same state having the power to take private property ANY other rights were held cheaply. If the state didn’t like what you were saying, they could sweep in and take EVERYTHING away from you…

    It makes for a chilling effect on dissent…

    • Ralph T. Howarth, Jr.
      Ralph T. Howarth, Jr. says:

      This is true. Property ownership is essential to rights and is the pinnacle of political contention. I know of a mission in Sri Lanka where it is illegal to practice Christianity. There, the government prevents a church from owning property; and by extension, does not recognize marriages performed by any establishment not holding the property the marriage is done on. So by extension, Christians cannot marry in Sri Lanka…at least not officially.

  4. Marvin Arlington
    Marvin Arlington says:

    Sounds like you are replacing your own point of view with that of the founders. John Locke was a very influentual thinker of the day. The pursuit of happiness goes beyond the mere ownership of property. It is much more the essence of capitalism and a free society. It incorporates freedom of choice, the very basis for Milton Friedman’s writings.

    • Ralph T. Howarth, Jr.
      Ralph T. Howarth, Jr. says:

      I would have to differ some. Property was the original by-word of John Locke and company. Pursuit of happiness, an ideal of the time, was something being realized (again). Back in those days, captialism was synonymous with “industrialization” and was not used in terms like we do today. In addition, Milton Freidman is 20th century while Locke and company was cerca 17th century.

  5. Darrin
    Darrin says:

    I’m looking for a help from anyone that might know of a book that specifically discusses the key SCOTUS cases that have morphed the meaning of the text in the COTUS, such as the cases mentioned above, that either supported distorted interpretations or created new distortions from straight forward text. Does anyone know of a book that might cover that kind of topic that they’d recommend? And no, I’m not a lawyer, so I’m looking for a layman’s version. My point being, that reading purely historic texts doesn’t reflect what is in practice today, so I’m just looking for a book that at least hits the highlights of precedent setting/supporting cases, which have in effect modified the COTUS without going through the proper amendment process. Any suggestions would be welcome. Thanks!

    • yguy
      yguy says:

      I’m looking for a help from anyone that might know of a book that specifically discusses the key SCOTUS cases that have morphed the meaning of the text in the COTUS, such as the cases mentioned above, that either supported distorted interpretations or created new distortions from straight forward text.

      I can’t recommend a book, but I’d say Barron v Baltimore, Wickard v Filburn, Roe v Wade and Lawrence v Texas all fit that description.

      Incidentally, I think a good follow-up to the ongoing clause-by-clause exposition of the Constitution on this site would be to do something similar with landmark SC decisions.

      • Richard Monts
        Richard Monts says:

        You might try looking at The Heritage Guide to the Constitution ISBN 1-59698-001-X published by Regnery Publishing, Inc. It is a product of The Heritage Foundation, Edwin Meese was the chairman of the editorial advisory board.


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