'Takings' as Due Process, or Due Process as 'Takings'?

30 Pages Posted: 5 Apr 2013

Date Written: January 1, 2002

Abstract

This article contends that the United States Supreme Court has been using the “takings” clause of the Fifth Amendment as a basis for limiting or overturning land use regulations where the Court should have been analyzing the cases using the Due Process Clause of the same Amendment. This article will test this hypothesis by applying due process analysis to five of the leading United States Supreme Court cases dealing with land use regulations, which should not have been subject to the Takings Clause. One of the key issues to be addressed is whether the Supreme Court is giving the state courts any guidance to enable them to decide these cases in a manner that is consistent with the federal Constitution. This article will also look at six recent cases from Minnesota to see if the Minnesota courts are able to work through this muddle and to see if the suggested approach would have resulted in different outcomes in those cases. This article contends that the Court should treat real takings as real takings and require the state to pay for them. It should treat unfair and unjust regulations as denials of due process and tell the state that it cannot do that. The Court should stop treating regulations as if they are taking property for public use, which they are not, and begin treating them as what they are: regulating what owners of property may or may not do with their property. This simpler approach to these cases would generate similar outcomes but in a more consistent and understandable manner.

Keywords: Regulatory takings, just compensation clause, Fifth Amendment, plain meaning, Epstein, due process clause

JEL Classification: K42, K00

Suggested Citation

Salzberg, Kenneth C., 'Takings' as Due Process, or Due Process as 'Takings'? (January 1, 2002). Valparaiso University Law Review, Vol. 36, p. 413, 2002, Available at SSRN: https://ssrn.com/abstract=1973683

Kenneth C. Salzberg (Contact Author)

Hamline University - School of Law ( email )

1536 Hewitt Avenue
Saint Paul, MN 55104-1237
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
34
Abstract Views
250
PlumX Metrics