October 27, 2026 - 9:01 pm

The midterm elections have largely overshadowed the U.S. Supreme Court’s most recent term, which began this month. Last week, the justices missed a prime opportunity to invigorate the Fifth Amendment’s taking clause.

The Bill of Rights prohibits governments from taking private property “for public use without just compensation.” Yet some lower courts have carved out a loophole for this protection when it comes to actions taken by law enforcement officers carrying out their duties. Yet no such language exists in the text of the Fifth Amendment.

The absurdity of the exception is embodied in recent cases involving Amy Hadley and Carlos Pena.

Ms. Hadley’s Indiana residence was damaged in 2022 after police fired more than two dozen tear gas canisters into her domicile to draw out a criminal suspect they mistakenly thought had entered the home. They later smashed windows and tore out walls in search of the fugitive. It turned out the suspect had never been there. Ms.…