Wednesday, November 16, 2005
On the left side of the blog, under the Resources heading, I've posted a PDF of James Madison's 1792 essay Property. The essay is short (only a bit more than two pages) and can be a helpful teaching resource -- I use it in both my first-year Property class and my Property Theory seminar. In my seminar, I focus on the broad conception of property articulated by Madison. In my Property class, I include the essay in the unit on regulatory takings. The following language is most relevant to the takings discussion:
If there be a government then which prides itself in maintaining the inviolability of property; which provides that none shall be taken directly even for public use without indemnification to the owner, and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties; nay more, which indirectly violates their property, in their actual possessions, in the labor that acquires their daily subsistence, and in the hallowed remnant of time which ought to relieve their fatigues and soothe their cares, the inference will have been anticipated, that such a government is not a pattern for the United States.
Madison's distinction between direct and indirect violations of property suggests to some readers (most notably Bill Treanor) that Madison believed that indirect violations of property (e.g., regulations) were morally wrong but did not fall within the scope of the takings clause. I usually raise this issue during discussion of footnote 15 in Lucas v. South Carolina Coastal Council, where Justice Scalia notes, but declines to follow, the original understanding of the Just Compensation Clause.
I will post additional resources in the near future. If there is anything you would like me to add, please leave a comment or send me an e-mail. [As always, comments are held for approval, so there might be some delay in posting]