Plundering Property is a Very Bad Idea
55 Pages Posted: 31 Jul 2008
Date Written: July 30, 2008
This Article reviews the common law and constitutional history of police power in the American states, because the police power is at the heart of all inverse condemnation, or regulatory taking, issues. The article points out that this history has not played a prominent role in the series of leading U.S. Supreme Court cases on regulatory takings. Indeed, in the Lucas case from 1992, the one case where the history of these doctrines was most conspicuously referred to, both the majority and the dissenting opinions agreed on the main scholarly sources for this history, and those sources are shown to be incomplete and misleading. The article concludes with suggestions of reasons why awareness may be critical for attorneys involved in takings cases.
The beginning of the article shows how only three major takings cases in the past 30 years contain an explicit element of early American history.
Then, the origins and character of police power in Anglo-American law are charted, starting with common law origins, then colonial American history, U.S. constitutional history, and in American court cases before Thomas M. Cooley's watershed treatise describing constitutional limitations on state legislative powers in 1868.
The article presents summaries of 38 cases from 8 of the original states revealing something of the judicial attitudes toward compensating for either taking or regulating property. These cases reveal that (1) philosophical acceptance of the notion of compensation for taking property was already widespread in the era surrounding the time the Fifth Amendment was adopted and implemented; and (2) at the same time the idea that compensation would be owed for deprivation of property rights short of complete appropriation was also widely accepted, even if not often tested.
Finally, six modern writings on takings compensation history are critiqued. Their scholars' assumptions and conclusions are examined in light of state cases from colonial America.
Keywords: Legal history, American property law, English land law, Fifth Amendment, takings, eminent domain, public trust, nuisance law, public use, private property rights, police power, Penn Cent. Transp. Co. v. New York (1978), Agins v. Tiburon (1980), Lucas v. South Carolina Coastal Council (1992)
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