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'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

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Date posted: April 23, 2008 ; Last revised: April 10, 2009

Suggested Citation

Garnett, Nicole Stelle, 'No Taking Without a Touching?' Questions from an Armchair Originalist (2008). San Diego Law Review, Vol. 45; Notre Dame Legal Studies Paper No. 08-11. Available at SSRN: https://ssrn.com/abstract=1124046

Contact Information

Nicole Stelle Garnett (Contact Author)
Notre Dame Law School ( email )
P.O. Box 780
Notre Dame, IN 46556
United States
574-631-3091 (Phone)
HOME PAGE: http://www.law.nd.edu/faculty/facultypages/garnettn.html

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