The Bill of Rights and Property

Spotlights safeguards to property in the Bill of Rights, explores various types of property, and examines the concepts of takings, just compensation, and eminent domain.

How Does the Fifth Amendment Protect Property?

Clock 60 minutes

The Founders believed that property is among the natural rights governments exist to protect. One of the ways the Founders protected property rights was in the Fifth Amendment. This amendment restricts the government’s ability to take property and ensures that when it does take property, it must pay for it. This lesson explores the Fifth Amendment and its applications.

Founding Principles

Due Process image

Due Process

The government must interact with all citizens according to the duly-enacted laws; applying these rules equally among all citizens.

Inalienable / Natural Rights image

Inalienable / Natural Rights

Freedoms which belong to us by nature and can only be justly taken away through due process.

Property Rights image

Property Rights

The natural right of all individuals to create, obtain, and control their possessions, beliefs, faculties, and opinions, as well as the fruits of their labor.

Rule of Law image

Rule of Law

Government and citizens all abide by the same laws regardless of political power. Those laws respect individual rights, are transparently enacted, are justly applied, and are stable.

Overview

The Founders believed that property is among the natural rights governments exist to protect. One of the ways the Founders protected property rights was in the Fifth Amendment. The Fifth Amendment restricts the government’s ability to take property and ensures that when it does take property, it must pay for it. However, when do governments’ actions become a taking, and when should the government pay for an intrusion?

Objectives

Students will:

  • Explain how the Fifth Amendment protects property rights.
  • Understand the concepts of just compensation and eminent domain.
  • Analyze government actions to determine whether or not the actions would be considered a “taking.”

Materials

  • Handout A: The Takings Clause
  • Handout B: Background Essay – How Does the Fifth Amendment Protect Property?
  • Handout C: Property and the Supreme Court
  • Handout D: Updates

Standards

  • NCHS (9-12): Era III, Standards 3b and 3c
  • CCE (9-12): IA1 and IID1
  • NCSS: Strands 6, 7, 8, and 10

Background 15 min.

  1. Have the students work in pairs or groups to complete Handout A: The Takings Clause.
  2. As a large group, discuss the definitions they arrived at by consensus and clear up any misconceptions.

Warm-up 10 min.

  1. Have students read Handout B: Background Essay – How Does the Fifth Amendment Protect Property?
  2. Discuss each definition on Handout B as a class.

Activities 25 min.

  1. Cut out the scenario cards on Handout C: Property and the Supreme Court. Ask two students to come to the front of the room, assume the roles of the people on the first scenario card, and present the information to the class in role-play form.
  2. After students have finished presenting, conduct a large-group discussion about the situation. Ask the class:
    • ƒIs the situation described a “taking” of property?
    • ƒƒIs the situation described a constitutional exercise of government power?
    • ƒƒIf so, what would be the best way to determine just compensation?
  3. Repeat this process for all three scenarios.
  4. After the scenarios have all been discussed, distribute or read aloud Handout D: Updates to share with the students how the Supreme Court ruled on each case. Ask students to share their reactions to the ruling.

Wrap-up 10 min.

As a large group, discuss the following questions:

  1. In which case did the government attempt to take physical property? (Nollan v. California Coastal Commission, 1987)
  2. In which case did the Court rule that a “taking” had occurred, even though no land was actually taken? (United States v. Causby, 1946)
  3. In which case did the Supreme Court interpret “public use” as “public benefit? Is there a difference? (Kelo v. New London, 2005)
  4. How does the Kelo ruling differ from the other property rulings? Why do you think it has been a very controversial decision?
  5. Is redevelopment through eminent domain the only way to revitalize a neighborhood? Is it the best way? What other methods can you think of?

Homework

  1. The Supreme Court decision in Kelo v. New London (2005) has prompted some states to enact laws preventing the use of eminent domain to take non-blighted property for economic development. As of 2013, eleven state supreme courts have forbidden Kelo-style takings under their state constitutions. Additionally, at least one bank has said it will not loan money to be used for development of land that was obtained through this kind of taking. Have students investigate the public and private reactions to the Kelo case and present their findings in a PowerPoint or oral presentation.
  2. Have students learn more about the case of Berman v. Parker (1954), an important precedent for Kelo v. New London (2005). Students should make a Venn diagram comparing and contrasting the two cases with information on: the reasons the government gave for taking land; arguments against the takings; the court’s rulings; and who was affected by the decisions. Are “blight” takings or “redevelopment” takings more common? Which type is most important to the issue of property rights?

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