Does Five Equal Three? Reading the Takings Clause In Light of the Third Amendment's Protection of Houses

40 Pages Posted: 18 Jul 2011 Last revised: 19 Jan 2012

Thomas G. Sprankling

Columbia University - Law Review

Date Written: January 19, 2012

Abstract

The Supreme Court’s 5-4 decision in Kelo v. City of New London broke new ground by holding that the seizure of owner-occupied homes as part of a plan to foster economic development was a taking for “public use” under the Takings Clause of the Fifth Amendment. Kelo’s many critics have yet to advance a constitutionally-grounded rationale for why homes should receive special protection from condemnation. This Note argues that the Third Amendment’s solicitude for the home provides a constitutional basis for distinguishing between homes and the other forms of “private property” covered by the Takings Clause. The Amendment, which provides that “[n]o soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law,” shares both historical and textual links with the Clause. These connections suggest the judiciary should apply a form of heightened scrutiny similar to the “meaningful” review standard proposed by Justice Kennedy’s concurring opinion in Kelo when determining whether the government’s seizure of an owner-occupied home is for “public use.”

Keywords: Third Amendment, Fifth Amendment, Takings Clause, Public Use, Kelo, Home, House, Intratextualism

Suggested Citation

Sprankling, Thomas G., Does Five Equal Three? Reading the Takings Clause In Light of the Third Amendment's Protection of Houses (January 19, 2012). Columbia Law Review, Vol. 112, p. 112, 2012. Available at SSRN: https://ssrn.com/abstract=1887204

Thomas G. Sprankling (Contact Author)

Columbia University - Law Review ( email )

435 W. 116 Street
New York, NY 10027
United States

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