Fish, Dams, and James Madison: Eighteenth-Century Species Protection and the Original Understanding of the Takings Clause
34 Pages Posted: 19 Oct 2018
Date Written: 2004
Today's regulatory takings doctrine — governing any regulatory law not explainable by common-law principles of nuisance or property law — ignores the original understanding of property rights contemporary with the Takings Clause. At the the time of the framing and ratifying of the Constitution and Bill of Rights, a wide range of regulatory laws restricted land use in ways that went far beyond common-law nuisance and property principles. Moreover, the fact that James Madison and his colleagues addressed only appropriation in the Takings Clause and not regulation, despite the contemporary abundance of regulatory restrictions on land use, indicates that they did not view laws regulating land use as violations of property rights. The fish-passage laws discussed in this Article were prominent among the regulatory laws familiar to the founding generation. For example, in 1791, when the Takings Clause was ratified, nine states had laws prohibiting mill dam owners from obstructing the passage of fish. The fish-passage laws show that when legislators of the late eighteenth century perceived that certain uses of private property threatened the habitat of useful wildlife, they acted to modify the rights of property owners accordingly. This history should inform the Court's approach to habitat-protection laws today.
Keywords: takings, regulatory takings, property law, fifth amendment, due process, originalism, habitat protection, environmental regulation, land use, zoning, property rights
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