Ken Klukowski
The legal world has been focused on a constitutional property-rights case before the Supreme Court. Last week the Court handed down its decision, and disappointed those waiting for this decision by deferring the big question to a future case. So it remains unclear whether courts can take your property without compensating you.

The Takings Clause of the Fifth Amendment provides that the federal government cannot take your private property unless it’s for public use, and the government gives you “just compensation” (usually fair market value) for the property. In 1897, the Supreme Court held that the Takings Clause also applies through the Fourteenth Amendment to any property taken by state or local governments, as well.

Rush Limbaugh

This taking of property is often done through eminent domain. That’s the power of the government to claim private property for itself. It’s either done through a law passed by the legislative branch of government, or through a condemnation decision by the executive branch. Eminent domain is how most roads, schools, libraries, and other public works are built.

One question that’s been kicking around for decades is whether a court judgment from the judicial branch can likewise be a taking that triggers the Takings Clause. If a judge makes a decision that takes away your property, does the Takings Clause command that it must be for a public use, and must you receive just compensation? In short, is there such a thing as a judicial taking?

We thought the Supreme Court was finally going to answer that question in this year’s case of Stop the Beach Renourishment v. Florida Dept. of Environmental Protection.

In this case, Florida has a program to lay down additional sand on certain beaches that have been eroded. Property rights are almost exclusively a matter of state law. Under Florida law, a person with waterfront property owns that property to the high-tide waterline, and then the land outward into the water belongs to the public. If sediments build up to push the high-waterline outward, then the owner gains property. If the land erodes into the water, then the owner loses property.


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.