The (Ir)Relevance of Constitutional Protection for Property Rights?: Compensation for Takings in Canada and the U.S.

112 Pages Posted: 29 May 2008 Last revised: 1 Oct 2012

See all articles by Cherie Metcalf

Cherie Metcalf

Queen's University - Faculty of Law

Date Written: May 28, 2008


The aim of this paper is to investigate how the choice of legal form matters when securing property against government "takings". The focus is on the consequences of choosing a constitutional, as opposed to a statutory or common law protection for property rights.

The paper draws on economic and public choice analysis to lay out a set of functional justifications for imposing a liability to pay compensation on government when it "takes" private property. I consider functional interests across two broad categories of efficiency and fairness, looking in particular at interests including: "fiscal illusion"; "investor insurance"; "externality control"; "transactions costs"; "distribution"; "government failure" and "property law and norms". I examine the implications of choice of legal form within these interests, and also look across the functional interests in an integrated perspective. The integrated theory suggests that a single liability regime will be unable to accommodate the complex and often conflicting demands imposed by the functional interests. The choice of constitutional form will involve an implicit need to prioritize the functional interests to be served. The integrated theory suggests that the functional interests in efficiency may be as well served by non-constitutional forms of property protection, while interests rooted in fairness concerns may require constitutional status. However, the theory also suggests that these may be differences in degree, rather than in kind. The second section of the paper examines the comparative law of takings and compensation in Canada and the US in light of the theory.

Keywords: Property Rights, Takings, Comparative Constitutional Law, Law and Norms

JEL Classification: K11, K19

Suggested Citation

Metcalf, Cherie, The (Ir)Relevance of Constitutional Protection for Property Rights?: Compensation for Takings in Canada and the U.S. (May 28, 2008). CLEA 2008 Meetings Paper. Available at SSRN: or

Cherie Metcalf (Contact Author)

Queen's University - Faculty of Law ( email )

Macdonald Hall
Kingston, Ontario K7L3N6

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