"No Taking Without a Touching?" Questions from an Armchair Originalist

When ratified, the Fifth Amendment's Takings Clause only reached federal action, and the federal government lacked authority, in most cases, to enact the kinds of police power regulations that tend to raise regulatory takings questions. Historians of the Takings Clause frequently draw upon case...

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Bibliographic Details
Published inThe San Diego law review Vol. 45; no. 3; p. 761
Main Author Garnett, Nicole Stelle
Format Journal Article
LanguageEnglish
Published San Diego University of San Diego, School of Law 01.07.2008
Subjects
19th century
Compensation
Constitutional amendments
Federal court decisions
Federal government
Jurisdiction
State court decisions
United States > US
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Summary:When ratified, the Fifth Amendment's Takings Clause only reached federal action, and the federal government lacked authority, in most cases, to enact the kinds of police power regulations that tend to raise regulatory takings questions. Historians of the Takings Clause frequently draw upon cases decided well into the nineteenth century to support various, and competing, conclusions about the original reach of the compensation requirement. A final difficulty with the use of state cases is that they are relevant to original meaning analysis only to the extent that nineteenth century state courts were asking the same questions as modem courts faced with regulatory takings claims. The Takings Clause represented a profound departure from voluntary remuneration practices, whatever their extent, by mandating just compensation for all takings by the federal government.
ISSN:0036-4037