America’s founders enshrined property rights in our Constitution, not just because they thought it would provide a strong blueprint for a free market but because they saw ownership as an essential human right.
Thus, the final draft of James Madison’s Fifth Amendment has no wiggle words or loopholes. It states unequivocally that private property shall not “be taken for public use, without just compensation.” And yet despite this clear guidance, courts are expanding what can be considered public use, steadily eroding protections in takings law. In 2005, the Supreme Court ruled that property can be taken from one private owner and given to another private owner. In 2018, the Court of Appeals for the Federal Circuit took an even bolder step, ruling that private property can be taken and destroyed without compensation.