William Michael Treanor

The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment

The principle that the state necessarily owes compensation when it takes private property was not generally accepted in either colonial or revolutionary America. Uncompensated takings were frequent and found justification first in appeals to the crown and later in republicanism,1 the ideology of the Revolution. The post-independence movement for just compensation requirements at the state and national level was part of a broader ideological shift away from republicanism, which stressed the primacy of the common good, and toward liberalism.2 At the time the Bill of Rights was adopted, that shift had not been completed, but the trends of the revolutionary era received coherent expression in the thought of James Madison, the author of the Fifth Amendments just compensation clause. 3