To the Promised Land: A Century of Wandering and a Final Homeland for the Due Process and Taking Clauses
66 Pages Posted: 19 Feb 2012
Date Written: 1989
The fifth amendment imposes two constraints on the federal government's authority to interfere with private property rights. First, it prohibits the deprivation of property without due process of law. Second, it bars the taking of private property for public use without just compensation. The fourteenth amendment explicitly imposes only the former constraint on the states. Since the late nineteenth century, however, the Supreme Court has interpreted the fourteenth amendment's due process clause to incorporate and make applicable to the states the fifth amendment's taking constraint.
This article aims to briefly review the separate natures of deprivations and takings as reflected in court opinions, describes three models of relating the two clauses, traces each model through jurisprudential eras, and recommends a final choice among the models to serve as a constitutional predicate for future fourteenth amendment issues.
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