The Supreme Court has saved one of its most important cases for the term’s final argument, coming up on Wednesday. Tyler v. Hennepin County scrutinizes the dubious practice of “home equity theft,” where state and local authorities take full title to homes that have been foreclosed upon for tax sales, no matter how small the amount of taxes due or how large the amount of equity accrued.

Geraldine Tyler, a 93‐year‐old woman on a limited income, owned a condominium in the Minneapolis area. When she was unable to pay her $2,300 property tax bill, which eventually turned into nearly $12,700 with interest and fees, Hennepin County seized and sold her property to pay the bill. But instead of keeping just the $12,700 that was owed and returning the rest, the county kept the entire $40,000 from the sale — because Minnesota is one of 14 states that allows itself to take all the proceeds from tax foreclosures.

This practice often affects the poor and elderly who own their homes free of a mortgage but don’t have enough discretionary income to pay property taxes, which means stories of clear injustices, such as Tyler’s, are common. Another example: A Michigan family underpaid their property taxes by $144, spurring Wayne County (Detroit) to take two homes and sell them for $108,000, with the county pocketing the entire amount .

After Minnesota seized her assets, Tyler sued, arguing that the county unconstitutionally took her property without just compensation in violation of the Fifth Amendment’s Takings Clause. The 8th U.S. Circuit Court of Appeals affirmed the district court’s dismissal of her case because Minnesota law declared that the home equity was not Tyler’s private property and so there was no taking. The Supreme Court agreed to take the case, which has brought together advocates from across the ideological spectrum, and trade associations that normally butt heads, to oppose home equity theft.

Progressive groups such as the Constitutional Accountability Center are aligned with conservative groups such as the Claremont Institute’s Center for Constitutional Jurisprudence. The American Civil Liberties Union is on a brief with the Cato Institute. The National Taxpayers Union Foundation, AARP, Chamber of Commerce, National Association of Home Builders, National Association of Realtors, National Consumer Law Center, and Public Citizen have all weighed in to help Tyler, as have disability advocates and four of Minnesota’s congressional representatives. Hennepin County, meanwhile, is supported mainly by state and municipal governments and related associations.

My organization, the Manhattan Institute, joined the Buckeye Institute, the National Federation of Independent Business, and three other groups on a brief supporting Tyler . We presented a historical argument that explains how (1) the Magna Carta and colonial law established the just-compensation requirement; (2) the framers and succeeding generations held the requirement to be categorical and fundamental; (3) English and American law have long recognized that the government may take no more than is necessary; and (4) subsequent developments establish that equity in land is a form of personal property.

At base, the takings clause is unconditional. Its simple and unadorned language provides, “Nor shall private property be taken for public use, without just compensation.” Those words, which restrict the traditional government power of eminent domain, can more precisely be called the just compensation clause. They carry the same meaning today that they did when they were written with quill and ink, affirming the equitable premise that, as the Supreme Court put it a decade ago , “when the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner.”

That original understanding of the just compensation clause, rooted in the Magna Carta and applied consistently to this day, makes clear that when the government takes an interest in property for public use, its duty to compensate the former owner is categorical. In drafting the Fifth Amendment, James Madison restated familiar and uncontroversial precepts of English law that had by then taken root in colonial statutes and common law. Colonial statutes, nascent state constitutions, and the Northwest Ordinance of 1787 all conditioned the sovereign’s right to take property for the public good on just and contemporaneous compensation to the landowner.

Expressly included in that historical understanding is the principle that when the government takes property, particularly when the government takes real property to satisfy a debt, its power to take goes only so far as is necessary. A taking that leaves the government with a profit at the owner’s expense violates this principle. The framers rightly understood equity in real estate to be a form of personal property and thus protected from uncompensated or unwarranted takings.

The just-compensation requirement is also “categorical” in the sense that a sovereign’s proper authority to take private property to satisfy a debt requires that the government compensate the property owner for accrued equity. Indeed, as the Supreme Court plainly put it in a 2019 case that allowed takings claims to go straight to federal court without exhausting state processes, a “property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation.”

Although some state and local governments may find their own statutorily created equity-confiscation scheme acceptable, and financially beneficial, the Constitution does not. The Fifth Amendment’s plain language, as well as its well-established antecedents in England and colonial America, highlight the primacy of the just-compensation requirement and the inherent limit of eminent domain in Anglo-American law. The historical record shows that the founding generation and the 19th-century jurists who applied their principles would have plainly understood home equity as property subject to the Fifth Amendment’s protections.

Few people deny the government’s power to take property to satisfy the owner’s debts, subject to due process and other protections, but no government has any proper business taking more than it is owed.

Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court . He also writes the Shapiro’s Gavel newsletter on Substack.