Intratextual and Intradoctrinal Dimensions of the Constitutional Home

Abstract

The home has been lifted to a special pantheon of rights and protections in American constitutional law. Until recently, a conception of special protections for the home in the Fifth Amendment Takings Clause was under-addressed by scholars. However, a contemporary and robust academic treatment of a home-centric takings doctrine merits a different approach to construction and interpretation: the intratextual and intradoctrinal implications of a coherent set of homebound protections across the Bill of Rights, including the Takings Clause.

Intratextualism and intradoctrinalism are interpretive methods of juxtaposing non-adjoining and adjoining clauses in the Constitution and Supreme Court doctrines to find patterns of meaning in words and jurisprudence. Applying these methodological exercises to the first five amendments in the Bill of Rights reveals deeper thematic connections among the textual and doctrinal protections to the home. This cross-pollination of constitutional clauses and doctrines also offers scholars and jurists normative doctrines to provide greater protections to homes beyond the traditional protections that have existed for decades under Supreme Court jurisprudence.

Keywords: State Constitutional Law, Takings, Supreme Court, Zoning, General Welfare, Federalism, Constitutional Property, Takings, Kelo, Constitutional Law, Fifth Amendment, Regulatory Takings

JEL Classification: K11, K19, R38, R52