Take in Case of Emergency: Reconciling Necessity Takings with the Original Meaning of the Takings Clause

Abstract

Does the Fifth Amendment’s Takings Clause permit the state to destroy property without compensation whenever it declares an emergency? The long-standing doctrine of necessity empowers the state to do exactly that. Courts dating back to common law England have permitted governments to claim a privilege of necessity to avoid paying for private property they destroy in times of crisis. The privilege rests on the principle that the public good sometimes outweighs the harm the individual suffers. Today’s courts and academics stretch this principle to its limits, arguing necessity should be used as a vehicle for combating all manner of social problems, ranging from climate change mitigation to expanded public restroom access. This Note attempts to ground necessity doctrine in the text and history of the Fifth Amendment’s Takings Clause through an originalist lens. The Takings Clause and necessity have a rich history, ripe for originalist analysis. After compiling and considering the relevant evidence, this Note argues the original meaning of the Fifth Amendment does not support a necessity exception to its compensation requirement. Instead, it argues that only in circumscribed circumstances does the state’s compensation obligation fail to attach when it destroys private property