Does the Compensation Clause Burden the Government or Benefit the Owner? The Compensation Clause as Process

Abstract

One of many ideas indelibly drawn in the legal vernacular is that “if a regulation goes too far it will be recognized as a taking.” This workhorse of a phrase has shouldered the bulk of the regulatory takings doctrine since the first half of the last century. So much ink has been spilled in an attempt to parse the meaning of “too far,” and yet the academic and judicial communities have made little progress towards a better understanding. This article, therefore, seeks to divert some attention away from the meaning of “taking”, and put a little more focus on the function of “compensation” by looking to the language of the Constitution and the fundamental purpose of the Takings Clause.

Trying to divine the fundamental purpose of any constitutional language is a difficult task -- where do we even start? One thing we can say with some certainty is that much of the practical debate about the Takings Clause surrounds compensation--when must the government pay a property owner for a loss or devaluation of property? Thus, at the center of any practical analysis of the Takings Clause should be the real purpose and meaning of “compensation.” Not only how much compensation is “just,” but also when (under what circumstances) is compensation due at all. This article proposes that simply because property has been “taken,” whatever that means, compensation is not necessarily due.

The general thesis of this article is that the Compensation Clause of the Fifth Amendment is a procedural requirement, not a substantive one, that is intended to burden the government and not benefit the property owner. Hopefully, the continual focus on what regulations amount to takings may be relegated to an academic question and the question that both governments and landowners care about--whether compensation is due -- is given more importance.

Keywords: Public Use, Compensation Clause, Land Use, Property, Penn Coal, Lingle v. Chevron, Fifth Amendment, Property, Due Process