The original understanding of the Takings Clause and the political process

Article Abstract:

The Takings Clause should be interpreted using a process-based approach, which would grant compensation only for cases in which the political process is likely to fail to protect property interests, such as cases involving environmental racism or singling out. The proposed interpretation is supported by both originalist and non-originalist grounds. The Takings Clause was originally intended to cover only physical takings because those were most likely to be affected by process failure. However, interpretation of the Takings Clause began to go astray in 1922 with the Supreme Court decision in Pennsylvania Coal v. Mahon.

Cases

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The curious resurrection of custom: beach access and judicial takings

Article Abstract:

The customary law tradition may have a place in debates over land use, public rights and property rights, but customary law should only be employed as it was traditionally intended. Under customary law, long-standing customs can evolve to have the effect of law. Some jurisdictions are enforcing customary laws on a state-wide basis, even though customs are typically more localized. States are using the customary nature of laws in takings suits to claim that the newly recognized laws have always existed, suggesting that judicial recognition of custom did not result in a property right loss.

Beaches, Public easements, Customary law

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The concept of property and the Takings Clause

Article Abstract:

The 20th century conception of property as rights has caused a failure in doctrine relating to the Takings Clause which is malformed in the attempt to fit the conception to the constitutional language. A new conception based upon a broader post-19th century conception of property as things should be developed to replace the faulty interpretation which exists. Divided ownership, intangibles, and government power should be taken into account.

Constitutional law, Constitutional interpretation, Right of property, Property rights

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