Columbus, OH – On Thursday—in response to the court reaching out to personally invite The Buckeye Institute to weigh in—Buckeye filed an amicus brief in Fulton v. Fulton County Board of Commissioners, urging the U.S. Court of Appeals for the Eleventh Circuit to reaffirm the constitutional right to seek just compensation when the government takes private property. The Eleventh Circuit directly requested this brief from The Buckeye Institute, recognizing its continued insightful and well-reasoned legal arguments in other property rights cases that would be of value as the court considers this case. 

“The sanctity of private property rights is both deeply rooted in American society and fundamental to our understanding of justice,” said David C. Tryon, director of litigation at The Buckeye Institute. “If state or local governments can seize private property without compensation, it would make a mockery of the Fifth Amendment and leave citizens with no protection.”

In the brief, filed in response to the court’s November 12, 2024, invitation, Buckeye, along with our fellow amici, addresses the following issues:

• Whether the takings clause in the U.S. Constitution provides a cause of action directly against the federal government under the Fifth Amendment;
• Whether the Fourteenth Amendment extends a direct cause of action for takings against state governments; and,
• Assuming that the takings clause does provide a direct cause of action against either the federal government or state governments, whether that cause of action necessarily applies to local governments.

Thomas G. Saunders, with Wilmer Cutler Pickering Hale and Dorr LLP, is counsel of record on this brief. Professor James W. Ely, Jr., the Milton R. Underwood professor of law emeritus and professor of history emeritus at Vanderbilt University, and Julia D. Mahoney, the John S. Battle professor of law and the Joseph C. Carter, Jr. research professor of law at the University of Virginia School of Law, joined The Buckeye Institute’s brief.

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UPDATE: July 31, 2025, the U.S. Court of Appeals for the Eleventh Circuit adopted arguments put forth by The Buckeye Institute and ruled that Mr. “Fulton can bring an action directly under the Takings Clause. And because he may do so, amendment of his complaint is not futile.”