'No Taking Without a Touching?' Questions from an Armchair Originalist
Nicole Stelle Garnett
Notre Dame Law School
San Diego Law Review, Vol. 45
Notre Dame Legal Studies Paper No. 08-11
This paper is an invited contribution to the Bernard Siegan Memorial Conference on Economic Liberties, Property Rights, and the Original Meaning of the Constitution at the University of San Diego School of Law. The paper poses three questions about the historical evidence used to support the dominant academic view that the Fifth Amendment's Takings Clause, as originally understood, extended only to physical appropriations or invasions of private property. First, the paper questions the relevance of state and local regulatory practices to the pre-incorporation understanding of the Takings Clause. Second, the paper expresses concern about the use of state-court cases decided well into the nineteenth century to elucidate the meaning of a late-eighteenth-century legal provision. Finally, the paper asks whether the state decisions frequently cited for the no taking without a touching principle might have been answering different questions than the modern regulatory takings problem.
Number of Pages in PDF File: 17
Keywords: property, takings, regulatory takings
JEL Classification: K11
Date posted: April 23, 2008 ; Last revised: April 10, 2009
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