In Memoriam: the Fifth Amendment

The Antiplanner spoke in Spokane last Friday at the annual meeting of Spokane chapter of Citizens Alliance for Property Rights. The focus of my presentation was how cities have eroded the property rights protections of the Fifth Amendment in order to promote the density schemes of urban planners.

The Fifth Amendment, which says that government may not take private property for public use without due compensation, was once interpreted to mean that government cannot take private property for private use at all and must pay compensation when it takes it for public use. But over time it has come to be reinterpreted to mean that government can take property rights through regulation without compensation and it can take private property from one owner and give it to another private party with compensation.
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Several Supreme Court decisions have led to this result, but three are probably the most important: The Euclid decision legalized zoning to prevent nuisances; the Penn Central decision approved takings of property rights through land-use regulation even when there was no danger of a nuisance; and the Kelo decision allowed cities to take peoples’ land by eminent domain to give to private developers even when the land wasn’t blighted. All of these rulings have one thing in common: the Court said that the cities involved could ignore the traditional interpretation of the Fifth Amendment because they had written an urban plan. No wonder urban planners have so much power: the Supreme Court has given any city that employs one a get-out-of-the-Fifth-Amendment-free card.