Regulatory Takings: A Chronicle of the Construction of a Constitutional Concept

Encyclopedia of the Supreme Court of the United States, Gale, part of Cengage Learning, Forthcoming

U of Maryland Legal Studies Research Paper No. 2008-21

45 Pages Posted: 6 May 2008 Last revised: 16 May 2008

See all articles by Garrett Power

Garrett Power

University of Maryland Francis King Carey School of Law

Date Written: 2008

Abstract

In the American constitutional system the sovereign has the power to enact regulations which are necessary to the common good and general welfare. But the Fifth Amendment to the United States Constitution proscribes that: No person shall be. . .deprived of. . .property, without due process of law; nor shall private property be taken for public use, without just compensation. And the question of whether a sovereign regulation has taken private property without just compensation has puzzled the United States Supreme Court for over two hundred years in over four hundred cases. This paper chronicles the leading cases and finds that the Court's present interpretation of regulatory takings sits upon a shaky foundation of split decisions; the Court's construction of the constitutional property remains a work in progress.

It finds today's Supreme Court is fundamentally split into two blocs. This Great Divide is sometimes attributed to a difference in judicial philosophy. Those in the Court's conservative wing are typically described as practitioners of judicial restraint. Those in the Court's liberal wing are said to be judicial activists who are intent on reconstructing the Constitution's language to meet the exigencies of the times.

The Court's constitutional property jurisprudence belies this stereotype. Its right wing is seeking to define the Takings Clause, beyond its original meaning, so as to discourage government activity. Conversely the left wing is more than willing to give wide discretion to legislative bodies to impose regulations without paying compensation to disappointed property owners.

Keywords: Takings Clause, Fifth Amendment, property

Suggested Citation

Power, Garrett, Regulatory Takings: A Chronicle of the Construction of a Constitutional Concept (2008). Encyclopedia of the Supreme Court of the United States, Gale, part of Cengage Learning, Forthcoming, U of Maryland Legal Studies Research Paper No. 2008-21, Available at SSRN: https://ssrn.com/abstract=1129774 or http://dx.doi.org/10.2139/ssrn.1129774

Garrett Power (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
95
Abstract Views
923
Rank
495,746
PlumX Metrics