Constitutional Issues

The United States Constitution contains several provisions that protect the individual from the state. Included in the Bill of Rights are important restrictions on governmental actions that are relevant to historic preservation such as a prohibition on the "taking" of property without just compensation and restrictions on religious exercise and free speech. These constitutional protections are made applicable to the states through the Fourteenth Amendment. In addition, the Fourteenth Amendment guarantees "equal protection" under the law.

Governmental restrictions on privately-owned historic properties must be consonant with the rights and protections afforded to individuals by the United States Constitution and the various state constitutions. Although courts have consistently upheld historic preservation laws and other land use regulations affecting historic properties against such claims, both facial and as applied, governments must continue to ensure that their actions do not run afoul of the federal or state constitutions.

Challenges to historic preservation laws have been made under the Takings, Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments, and the Religious Protection Clauses and the Free Speech Clause of the First Amendment.