The Fifth Amendment | The National Constitution Center | Khan Academy
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The Fifth Amendment | The National Constitution Center | Khan Academy


– [Kim] Hi, this is Kim from Khan Academy. Today we’re learning more about the takings clause of the Fifth Amendment. In another video we’ll discuss the other clauses of the Fifth Amendment, those that deal with self-incrimination and due process of law. But in this video we’re concentrating on just the last few words
of the Fifth Amendment which forbid the government
from taking private property for public use without just compensation. To learn more about the takings clause, I sought out the help of two experts. Richard Epstein is the Lawrence
A Tisch Professor of Law and Director of the Classical
Liberal Institute at NYU Law. He’s also a Senior Fellow
at the Hoover Institution. Eduardo Penalver is the
Allan R. Tessler Professor and Dean of Cornell Law School. So Prof. Epstein can you
give us a little background? Just what is the taking clause? – [Richard] Well, there’s a
rule in Constitutional Law that the shorter the provision, the more difficult the interpretation. And this is a very short petition. It says, “nor shall
private property be taken “for public use without
just compensation.” And the first thing to
understand about the clause is that it’s in the passive voice. So it doesn’t tell you who’s taking it. And early on, since this was
the part of the Bill of Rights, it was said to apply only to
Congress and not to the states. And then after the Civil War,
through the 14th Amendment, it was said to apply to the states. So now it applies to both the states and to the Federal government. – [Eduardo] Many constitutions don’t have an explicit property protection clause, but there’s a fairly strong norm around compensating
owners of private property when you, essentially
commandeer their property for public purposes. And that seems to have
been the motivation. It’s, the clearest reading of it is that it’s a provision of the
Constitution that makes clear that when the Federal
government takes your property, or when the states takes your
property for some public use, that they have to make you whole by giving you just compensation. – [Richard] Private property’s
a pretty comprehensive term. Everybody understands that it means land and the things you build on land. They also understand that
it tends to cover chattels, that is things like books and baseballs that you happen to own and wild animals. But it’s also, it’s
much broader than that. It covers all sorts of intangible rights, like patents, copyrights, trade secrets. These are very complicated
and generally speaking the government doesn’t have any obligation to create a patent, but once it gives you the patent it just can’t take it from you because the patent after
conferred, is in fact, now a property right. And then it also may or may not cover other kinds of intangibles like good will which is the value
associated with the business, knowing that your past customers may come back to you in the future. – [Eduardo] On the motives of the Framers for including this talk about
things like the confiscation, mostly of personal property during the Revolutionary War
by the British government, that was possibly motivation to make clear that if in future scenarios if the government wanted
to take your property it would have to, it would
have to compensate you. And I think most historians don’t think there was a real problem
being addressed by this. A problem of uncompensated
taking of property by colonial governments
during that period, or by the state governments during the Articles of Confederation. – [Richard] The Framers wanted a system of what we call limited government. And so the takings clause,
essentially says, is “yes, we need your land for a fort, “and it’s really very important. “But if we’re gonna take
it and use it for a fort, “that’s a public use, we’re
gonna pay you compensation “for the fair market value of the land “before the fort was put on.” And this is in order to make sure that you can’t pick and
choose your victims, and it’s a way of assuring
government regularity. That’s the first. Second thing is more economic, less apparent at the time of the Framing, but pretty apparent today. Is if the government can take something and not pay you compensation,
it’s gonna overtake. So your land is worth $100,000 as a farm, but if you’re gonna use it for a fort it’s only worth $10,000. If you don’t have to pay the $100,000, well you may take it because
you get $10,000 worth of gain. But if you have to pay the
fellow a fair market value of the property interest
taking, you won’t do it. So essentially what it
does is it makes sure, or at least improves the odds, that when the government
does take property, or does regulate, it will in fact improve overall social welfare. So you have a political function
dealing with singling out and you have an economic function dealing with the overall
improvement of government behavior from an economic point of view. – [Kim] Okay, so say I had a piece of land and the government decided that they wanted it for some purpose. What would be the legal process for the government to go
about acquiring my land? – [Eduardo] Well, the
process for eminent domain really varies by state, but typically there’s some notice that the government gives you that it intends to take your property. The government goes to court and gets an order of condemnation to take title of the property. And then often as a requirement that the government bargain with you about the value of the property. It will tell you what
it thinks the value is, the fair market value is
the standard that we use for just compensation. That’s the value that a
willing buyer would pay to a willing seller for the land. It doesn’t include things
like your sentimental value or anything like that. So it’s just the market
value of the property. There’s some back and forth through this required bargaining. If the government and the property owner can’t reach an agreement, then the government can go to court and get the court to specify
the value of the property that would aid in compensation. And then the payment is made
and the deed is transferred and the government becomes
the owner of the property. – [Kim] Interesting, so the government has gone through this process
to try to acquire my land. What if I’m a real hold-out and I just really don’t want
the government to get my land? What happens then? – [Eduardo] Well, you can
litigate various pieces of this, and again it depends a
little bit on the state law, so some states put more procedural hurdles in the way of the government, then other states make it
easier for the government. But under the Constitution
there are really only two ways you can resist the taking of your property through eminent domain. One is by arguing that the
use that the government plans to make of your property doesn’t count as a legitimate public use. Because the clause says,
“nor shall private property “be taken for public use
without just compensation.” And that public use language
has been interpreted to be a limitation on the
power of eminent domain. And then you can argue, the
second thing you can argue is that what the
government is offering you in terms of just compensation
is not adequate compensation. And you can litigate
those through the courts and that can slow the
process down quite a bit. Some states make it easier
for the government by saying, “well the government can
actually just take title, “while you litigate.” And others make you go, you know, allow you to stop the condemnation process and litigate in advance. But there’s often what’s
called a quick-take procedure which allows the government
to move more quickly and put the litigation on the back end. But the public use, if the
use is found not to be public, what you win is, you got
an actual prohibition on the taking itself. You keep your property. If you win on the just compensation side, all you get is more money,
they still take your property. (laughs) – [Kim] So, you mentioned public use. What counts as public use? – [Eduardo] Well, under the current law, any use that generates a public benefit is really a public use. So the way the court has put
it is anything the government, any purpose the government can pursue through any other means, it can pursue through eminent domain. So, if the government
wants to create jobs, or if the government wants to beautify, or if the government
wants to remove blight, all those things are things
that we think it’s legitimate for the government to try to do. If it can do those things, it can do them through the use of the
eminent domain power. – [Kim] One thing that
strikes me as interesting is just the fact that this
clause is in the Fifth Amendment among things like, double
jeopardy or self-incrimination. So why do you think the Framers included this particular clause here as opposed to elsewhere
in the Bill of Rights? – [Richard] Well that’s a great question to which there’s no obvious answer, but the one clause that
is pretty close to it is the due process clause
in the Fifth Amendment which says, “nor shall
any person be deprived “of life, liberty or property
without due process of law.” So if you start with the procedural stuff, somebody’s gonna say,
“well, how do we know “that the procedures aren’t fair?” And if it turns out
that the government uses a set of procedures that don’t
give you adequate notice, you’re always going to end up short on the amount of compensation
that you’re gonna acquire. So bad procedures tend
to lead to bad outcomes which tend to lead to property being taken at less than full market value. So what happens is is
therefore very close linkage between the procedures used
under the due process clause and the substance of protection
that you have under takings. – [Kim] Any changes in the interpretation of the takings clause by
the Supreme Court over time? – [Richard] Well there’s been a huge kind of switch up and down and let me put it the following way. In the beginning there
wasn’t much of anything that was done with respect
to the takings clause. The first Federal case to deal with it was called Barron against
Baltimore in 1833 or so. And it just simply said that
the clause does not allow for protection of Mr. Barron
against the city of Baltimore, because it only binds
the Federal government, it doesn’t bind the state. After the Civil War, two things happened of real distinction. The first thing is you start getting comprehensive regulation of the railroads and the
rates they can charge and then public utilities and the rates that they can charge. And then in 1921 there’s a
case called Block v. Hirsch and it’s a very close
five to four decision. But they sustain on the
grounds that it’s a war time, a temporary two year statue
that limits the rents that can be charged in Washington D.C. at the end of the first World War. – [Eduardo] One of the biggest changes in the interpretation
of the takings clause was the extension of the
takings clause to govern situations in which your property was not appropriated by the government. So what we called the
Regulatory Takings Doctrine which started in, with the case of Pennsylvania Coal
versus Mahon in the 1920s and then has now become much more, it was sort of dormant for a while, would become much more
active since the 1980s. That’s a doctrine that says
if the government regulates your use of property excessively, then the courts can treat that, in effect as a confiscation
of your property and require the payment
of just compensation. That was a pretty, that’s maybe
the most significant change in the interpretation of
the clause in its history. So there continues to be controversy about the public use doctrine. Modern commentators,
especially Libertarians want a very narrowly drawn
account of public use and disagree with the
breadth of the doctrine as I described it to you. And so there’s a lot of
activism around that. There’s been some state
laws that’s been enacted to try to raise the floor there. The Federal definition of
public use is just a floor and states can go beyond that and restrict the power of eminent domain more forcefully if they want to. And many have. – [Kim] So we’ve learned
that the takings clause of the Fifth Amendment prevents both Federal
and state governments from taking private
property for public use without just compensation. But there are a lot of
questions about what counts as private property, public
use or just compensation. In recent years debate
over the takings clause has centered on whether
government regulations about how a private
individual can use land also constitute a form of confiscation. And the extent of acceptable public uses for which the government
can seize property. To learn more about the Fifth Amendment, visit the National Constitution Centers interactive constitution
and Khan Academy’s resources on U.S. government and politics.

One Comment

  • volumelow

    Dear Khan Academy, I have been using your channel for almost 15 years now. Helped me get through middle school, high school, university, and now I still use it sometimes to learn new concepts. With all due respect, this video really does not add any value to the audio. Its just annotations… Almost no diagrams at all.

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