The Original Understanding of the Takings Clause

The champions of the property rights movement claim that they are fighting to restore the original understanding of the Takings Clause of the Fifth Amendment. They invoke James Madison and other founding fathers as support for proposed statutes that require the federal government to pay property owners when it prevents them from harming the environment or jeopardizing the survival of endangered species. Wetlands regulation, it is often said, takes property by diminishing its value, and the founders adopted the Takings Clause to ensure that, when government regulations diminished the value of property, the owner would receive compensation. Increasing numbers of lawsuits are being filed on the same theory. Established Supreme Court standards for resolving takings claims, litigants contend, are at odds with the founders\u27 belief that property ownership was a natural right that the government could never limit. These suits urge courts to return to the founders\u27 vision, and claim that, once that vision is revived, the judiciary will routinely invalidate local land use and environmental protection standards. Widely shared and forcefully repeated, this conception of the original understanding has come to play a central role in the debate about the Takings Clause. But it is demonstrably and dramatically wrong. The original understanding of the Takings Clause was, very simply, that the federal government had to compensate the property owner when it physically took property --such as when it took land to build a fort. The clause did not require compensation for regulations under any circumstances. Property rights advocates ignore the plain language of the clause, the evidence about what the founders and other Americans in the early republic thought the clause actually meant, and the founders\u27 views about property and democratic government. Claiming to rely on history, property rights advocates embrace, instead, a myth. Despite the public prominence of the property rights argument, there is actually nothing novel or particularly controversial about the conclusion that the Takings Clause was limited to physical seizures. With some notable exceptions, prominent legal scholars of all shades of political opinion--including such leading conservatives as former judge Robert Bork and former Solicitor General Charles Fried--support the conclusion that the property rights argument has no plausible foundation in the original understanding of the Takings Clause. Justice Scalia, the Supreme Court Justice who most consistently argues for a broad reading of the Takings Clause, has acknowledged that until well into the twentieth century it was generally understood that the Takings Clause reached only a ‘direct appropriation\u27 of property or [its] functional equivalent.... Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1114 (1992). The only remarkable aspect of the original understanding of the Takings Clause is how rarely the original understanding of this clause is taken into account in political and legal debates over property rights