Document Type

Article

Publication Date

2008

Abstract

The word property had many meanings in 1789, as it does today, and a critical aspect of the ongoing debate about the meaning of the Fifth Amendment's Takings Clause has centered on how the word should be read in the context of the Clause. Property has been read by Professor Thomas Merrill to refer to "ownership" interests, by Richard Epstein in terms of a broad Blackstonian conception of the individual control of the possession, use, and disposition of resources, by Benjamin Barros as reflective of constructions through individual expectations and state law, and by the author as physical control of material possessions

As a textual matter, however, the Takings Clause is not simply concerned with governmental actions that affect property. The Clause provides that "private property [shall not] be taken for public use without just compensation." It is thus concerned with "property taken for public use" and the word taken is the key, at least for a textualist, to understanding both which types of governmental actions fall within the ambit of the Clause and what types of property the Clause protects. The centrality of the concept of takings to the Clause's meaning is reflected by the name by which the Clause is known. It is the "Takings Clause," not the "Property Clause." Although it has, ironically, not figured prominently in "takings" scholarship, the word taken is of fundamental importance to the Clause's meaning. In this essay, the author explores the importance from a textualist perspective and argues that a textualist will reject the doctrine of regulatory takings.

Publication Citation

45 San Diego L. Rev. 633-643 (2008)

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