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The Taking Clause of 5th Amendment Cases Example

Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)

Facts of the case

Lucas, the petitioner, had bought several properties along the beach for approximately 1 million dollars in the year 1986. Lucas was also the sole owner of two vacant lots which were considered to be beachfront properties. The two properties were located in Beachwood East Subdivision which was part of the Wild Dune development. In 1988, Lucas was prohibited from erecting any building along with his properties the Act that was passed by South Carolina legislature. The Act was passed with good intent to protect the coast from beach erosion and storm surge. The petitioner argued the Act was more the same as taking by the South Carolina state since he was disallowed from doing activities that would please him in his property (Beck-Dudley, & Macdonald, 1995).

Issues in the case

The issue was whether the South Carolina state law that disallowed erection of building along this particular coast would amount to taking by the state. Also, should the property owner be compensated by the state for taking his land?

Case holding and analysis

According to the United States Constitution under the 5th and 14th amendments, this Act is taking by the state, and the owner should be compensated. Therefore, the Act amounts to taking. The court stated that the Lucas was deprived the value of the land he owned by the Act which constitutes to taking. It was argued that Lucas, the real property owner was called upon by the state to sacrifice all the economic benefits from the use of his land in the name of the common good is taking by the state. Therefore, Lucas suffered taking of his property by the state.

The ruling by the court proposed that the landowners such as Lucas should be allowed to utilize their property in the best way the sees fit unless the existing law directly prohibits such use or his use is a nuisance to others. Therefore, the legislature cannot be allowed to be adjusting the Act that could deprive the landowners all the economic benefits. The Act would burden Lucas as a result of restricting him from his property benefits. The court rule held that Acts such as this one was a way of converting private land or property into public use. The legislature Act did not directly confiscate Lucas’ land, but it instead deprived him the entire value of his property.

The court argued that there is no way which can differentiate complete deprivation of economic value of land use and a complete taking. Therefore, the court ruled that the Act is equivalent to taking because the existing common law does not prohibit Lucas from using his land as he sees fit. Lucas cannot be disallowed from building the homes on his beachfront property. The court ruled that the regulation is same as a taking.

United States v. Carolene Products Co., 304 U.S. 144 (1938)

Facts of the case

This case was derived from the power of the 5th amendment which relates to people and not the state.  The “Filled Milk Act” regulation prohibits that shipment of milk in the interstate commerce that involve skimmed milk which comprises oil or fat other than milk that resembles cream or milk.

The Congress claimed that any milk that is combined with the non-dairy fats constitute an adulterated article of food. Such milk is injurious to the general public health. Therefore, the sale of such milk is equivalent to fraud upon the public.

Carolene Product Company had indicated for the shipping of ‘Milton’ which was a compound of condensed skimmed milk mixed with coconut oil that resembles or imitates condensed cream or milk (Cushman, 2013).


Does this regulation/act give Congress the power to regulate the interstate commerce or it is merely an infringement to the 5th amendment?

Is this Act constitutional?


Yes, it was ruled that this regulation is constitutional.

Court rule

The court ruled that a regulation which is reasonable in its relation to the subject and it is adopted for the common good of a community is a due diligence process. Therefore, the end analysis needs to be sufficiently supported by evidence for it to be legit.

Court holding and analysis

First, the Congress had the power to regulate interstate commerce that involves shipment of adulterated food.  Second, the prohibition of the appellee’s product is by the law, and it does not limit interstate commerce or infringe upon the 5th amendment. There was sufficient evidence pointing that adulterated milk can hurt the general public health since they cannot differentiate the non-adulterated or adulterated milk.

Therefore, the appellee’s continued use of milk can be injurious and fraudulent to the public. The statutes apply if the product in semblance or imitation of skimmed milk or cream can injure the public by use of false labels against the pure food and drug act. The statute can go further and prohibit the use of substitute food, and in this case, milk is a good example suited for legislature but not applicable for the court. Besides, the 5th amendment does not guarantee an equal protection clause.  The 14th amendment applicable to interstate does not compel the legislature to prohibit potentially harmful products.

Finally, following the due process argument, any legislative enactment that is well guided by the appropriate knowledge shall not be denied its applicability on the constitutional basis such as depriving an individual liberty, property or life if the statute has rational basis.

Kelo v. The city of NewLondon, 125 S. Ct. 2655 (2005)


The City of New London in the state of Connecticut approved legislation on a development project which allowed the authority to seize private owned property and sell it to private developers. The signing of the eminent domain authority in 2000 was intended to increase tax revenue for the city and creation of new jobs.  Kelo, the plaintiff, had owned his home in the city for more than sixty years. His property was situated along the scheduled area to be condemned for the city’s development project.  Kelo and nine others brought a legal suit to challenge the project in Connecticut state court by violation of a “public use” as guaranteed by the 5th amendment. The court granted an injunction to prohibit the state from taking some of the private properties but not all. The court of appeal in the state reversed in part and affirmed in part the upholding of all takings.  However, the US Supreme Court granted the certiorari (Lucero, 2005).


The case was on whether the New London’s plan was good or satisfied the “public use” thresh-hold, or it was a way of taking away private property to benefit another particular party.


The 5th amendment provides that no private property shall be taken away from the owner without just compensation. The court held that the 5th amendment ban government from taking private property from its owner party A to transfer it another party B, despite the government offering just compensation.


The Connecticut Supreme Court held that the plan developed by New London served a valid public purpose and it was not to benefit a particular individual. The decision rationale on “public use” was based on the opinion of Justice Kennedy, Justice O’Connor and others who had a dissent opinion. According to J. Kennedy’s opinion taking power should consider the economic benefit that an individual could be deprived in favor of public use. Therefore, taking does not have grounds if public use test clearly indicates that it will benefit a particular private party.

Chicago Burlington and Quincy R.R. v. The city of Chicago, 166 U.S. 226 (1897)


The City of Chicago wanted to take private land and connect two disjointed sections, that is, between the 18th and the 19th street of Rockwell Street. The private property was owned by different individuals as well as the right of way was owned by Chicago, Burlington, and Quincy Railroad Corporation. The city petitioned for this land to be condemned in the Cook County Circuit Court to accomplish its plan. The court condemned the land, and the individual owners were compensated, but the railroad was only compensated one dollar only. Therefore, the railroad appealed the court judgment and alleged that its land condemnation violated the Due Process clause of 14th amendment. However, the Illinois Supreme Court affirmed the judgment (Stephens & Scheb, 2008).


The issue was whether the land condemnation and compensation by the court violated the Due process clause as guaranteed in the 14th amendment.


No, the court made a decision and held that the Due Process Clause only required the state to take private property for public use and award a just compensation.

Brief History of the Takings Clause

The “Taking Clause” is embedded in the U.S Constitution, and it states that “no private property shall be taken for public use.” The clause became very prominent in the last quarter century in constitutional jurisprudence especially due to its limitation to state and local governments power to take property.

Taking Clause was constituted in section 30 of the Magna Charta, and it declared that there is no land will be taken without following due process. King John I signed it, and it was made a part of coronation oaths undertaken by England kings. It was meant to protect land confiscation without due processes. This clause raised tension among the barons, king, queen, the church, and rising middle class. Several arguments were brought forward to oppose the taking clause on the political, legal and economical basis. The writers were influenced by the American law and constitutional law.

Sir Edward Coke (1552-1634), the Chief Justice of England recorded all decisions about treaties and cases that came before him in the development of common law. His work recognized the traditional rights that limited the power of the king from taking private property. Coke authored the “Petition of Right” comprising ancient provenance that is against the powers of the king (Trachtenberg, 1996).

The second writer was Sir William Blackstone (1723-1780) compile the “Commentaries on the Law of England,” which formed the basis of legal education in England and colonies in America as well.  He stressed on the use of the common law against the royal power.

John Locke (1632-1704) was the third writer who had a stand that sovereignty of a nation belong to the people since the people have a right to over through any government. He claimed that natural law in common law provides natural rights including property rights which are not dependent on royal authority.

The English colonialist was informed by the writings of Coke, Blackstone, and Locke as well as the Bible. Therefore, the declaration of independence in America asserted natural rights against the traditional royal absolutism. According to Declaration of independence, the monarchy has to respect the natural right, and it can be overthrown by the people if it violates the natural right.

Jefferson championed the anti-Federalists campaign after the adoption of the American Constitution due to fear that federal governments had a lot of power. He agitated for development and adoption of Bill of Rights. The 5th amendment protects the citizen from being deprived right to life, property, and liberty without the use of the due process; private property shall not be taken by the state for public use without just compensation.

However, the 5th amendment only limited federal governments leaving out state government. The case of Barron v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833) set the precedence to limit the state power through the introduction of 13th, 14th, and 15th amendments. The 14th amendment has express restriction clauses for equal protection, privileges, and due process and immunity clauses.

The Takings Clause has been applied to ensure that the procedural due process must be followed to make a decision. The Taking Clause of the 5th amendment and has been exercised through the 14th amendment in the case of Chicago Burlington and Quincy R.R. v. City of Chicago, 166 U.S. 226 (1897) where due process was used.

  • BECK-DUDLEY, C., & MACDONALD, J. (1995). LUCAS V. SOUTH CAROLINA     COASTAL COUNCIL, TAKINGS, AND THE SEARCH FOR THE COMMON GOOD. American Business Law Journal, 33(2), 153-178. https://dx.doi.org/10.1111/j.1744-1714.1995.tb00890.x
  • Cushman, B. (2013). Carolene Products and Constitutional Structure. The Supreme Court Review, 2012(1), 321-377. https://dx.doi.org/10.1086/669635
  • Lucero, L. (2005). Kelo v. City of New London. Planning & Environmental Law, 57(7), 11-13. https://dx.doi.org/10.1080/15480755.2005.10394288
  • Stephens, O. H., & Scheb, J. M. (2008). American constitutional law volume II: Civil rights and liberties. Belmont, CA: Thomson/Wadsworth.
  • Trachtenberg, Z. (1996). JUSTICE AND THE TAKINGS CLAUSE. Southwest Philosophy Review, 12(1), 217-223. https://dx.doi.org/10.5840/swphilreview199612121

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