The Original Understanding of the Takings Clause and the Political Process

The original understanding of the Takings Clause of the Fifth Amendment was clear on two points. The clause required compensation when the federal government physically took private property, but not when government regulations limited the ways in which property could be used. In 1922, however, the Supreme Court\u27s decision in Pennsylvania Coal v. Mahon established a new takings regime. In an opinion by Justice Holmes, the Court held that compensation must be provided when government regulation goes too far in diminishing the value of private property. Since that decision, the Supreme Court has been unable to define clearly what kind of regulations run afoul of Holmes\u27s vague standard. Attempts to do so, including the Court\u27s recent decisions in Lucas v. South Carolina Coastal Council and Dolan v. City of Tigard, have created a body of law that more than one recent commentator has described as a mess.” The Court and leading commentators have not seriously considered the possibility that there was an underlying rationale, worth reviving, that explains why the Takings Clause and its state counterparts originally protected property against physical seizures, but not against regulations affecting value. This article contends that the limited scope of the takings clauses reflected the fact that, for a variety of reasons, members of the framing generation believed that physical possession of property was particularly vulnerable to process failure. The article then argues on both originalist and non-originalist grounds for a process-based theory of the Takings Clause that departs dramatically from current takings jurisprudence