Property and Expropriation: Themes and Variations in American Law

Most of us think that as a nation, the United States is and always has been very conscious of property. The most legendary of our revolutionary slogans was no taxation without representation, which is fundamentally about taking property without consent. Almost from its inception, our Constitution has included a clause protecting property against takings for public purposes without compensation, whereas some other countries\u27 constitutions hedge their property clauses with flexible language to take into account the \u27\u27public interest, or—as in the case of our Canadian neighbors—dispense with constitutional property protection altogether. We have received a particularly large dose of the constitutional takings clause in the last few years, as conservative public interest groups have used the property clause to attack many environmental and land use regulations as unconstitutional takings of property. Indeed, property-rights proponents now seem poised to use takings doctrine to demand compensation for all kinds of regulatory change, since almost any regulatory change has some impact on someone\u27s property values. This question of regulatory takings is the main subject of this article, but my plan is to frame the regulatory takings issue in a larger context of expropriations in American law