Judicial Takings and Scalia’s Shifting Sands

Abstract

In this article, we examine the background of the judicial takings doctrine, discuss the Supreme Court’s ruling in Stop the Beach, react to that decision in light of Cato’s amicus brief, and contrast Justice Antonin Scalia’s views of Substantive Due Process as expressed in Stop the Beach with that in another high-profile case whose plurality opinion he joined, McDonald v. City of Chicago, to argue that the judicial takings doctrine is necessary to a robust constitutional protection of property rights.

Keywords: judicial takings, Fifth Amendment, Justice Scalia, substantive due process, Stop the Beach, property law, privileges or immunities clause, Fourteenth Amendment, sue process clause

JEL Classification: K11, K32, K40