Take it Past the Limit: Regulatory Takings of Personal Property

Abstract

In Lucas v. South Carolina Coastal Council, the Supreme Court explicitly distinguished personal property from the private property protected by the Takings Clause. This distinction in Lucas cemented the long-standing, but inexplicit, judicial principle that personal property is less protected than real property from regulatory takings.

However, this distinction is not supported by the text and historical context of private property in the Takings Clause, and the maxim that land is unique does not necessarily justify the exclusion of personal property from private property. A comparison between the Fourth and Fifth Amendment property provisions sheds light on the Court's sensitivity to varying forms of property, and suggests a broad meaning to the Fifth Amendment's private property. In summary, the Supreme Court's Lucas distinction between personal and real property for regulatory takings analysis is not defensible.

A more inclusive definition has severe practical implications that would cripple the regulatory state as the number of compensable takings claims expands. The exclusion of personal property may be understood as a pragmatic (non-textualist, non-originalist) way to keep regulatory takings doctrine from collapsing. This Article suggests that there may be other ways to both include personal property in regulatory takings doctrine and save the regulatory state.

Keywords: regulatory takings, personal property, consitutional law