Ken Klukowski

If government action takes your property, the Constitution says government must give you fair market value for it. But what if a court takes your property? That’s what the Supreme Court is going to decide.

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Government can take your property for public use under what is called “eminent domain.” The Takings Clause of the Fifth Amendment to the Constitution requires that if government action takes away your property—say, to build a bridge or a school—then that government must give you “just compensation,” meaning full market value for your property.

This has been a big issue in recent years, since the 2005 decision Kelo v. New London. In Kelo, the Court upheld by a 5-4 vote the taking of Susette Kelo’s house by eminent domain to build shops. (By the way, that land sits vacant and undeveloped. Kelo’s house was leveled to the ground, but the company hasn’t built any shops.)

But eminent domain almost always comes from the legislature passing a law or the executive branch deciding that it needs a plot of land. What about the courts? Can a court decision amount to a “taking” under the Fifth Amendment?

On Dec. 2, the Supreme Court heard arguments in the first real Takings Clause case to reach the Court since Kelo. And after forty-two years of debate among scholars, this case, Stop the Beach Renourishment v. Florida Dept. of Environtmental Protection (“Stop the Beach”), finally gives the Court a chance to settle whether there is such a thing as a “judicial taking” and how to deal with such cases.

Under traditional law (called “common law”), a person who owns waterfront property owns that land as private property up to the “mean high water line”—the average point where high tide touches the land. Out into the water from that line, it’s public land. Everything landward of that line belongs to the owner.

That line can change over time. If the beach erodes and the water advances inland, the owner loses property. If the beach expands, pushing the water out over time, the owner gains property.

Florida passed a law years ago to fight beach erosion. Under this law, the state carts in dump-trucks of sand to rebuild beaches. This benefits some property owners, for whom the water erosion went so far that it was eroding the foundation under their houses.

But other owners didn’t make out so well. For them, the water posed no danger. This extra sand—in many places over 70 feet wide—separates them from the waterfront that they paid extra money for when they bought that plot of ground.

Ken Klukowski

Ken Klukowski is a bestselling author and Townhall’s legal contributor covering the U.S. Supreme Court, and a fellow with the Family Research Council, American Civil Rights Union, and Liberty University School of Law.