Wednesday, May 7, 2008

Power on Constitutional Property

Garrett Power (Univ. of Maryland) has posted Constitutional Property' a Chronicle of the Construction of a Concept on SSRN.  Here's the abstract:

In the American constitutional system the sovereign has the power to enact "regulations which are necessary to the common good and general welfare." But the Fifth Amendment to the United States Constitution proscribes that: "No person shall be. . .deprived of. . .property, without due process of law; nor shall private property be taken for public use, without just compensation." And the question of whether a sovereign regulation has "taken" private property without just compensation has puzzled the United States Supreme Court for over two hundred years in over four hundred cases. This paper chronicles the leading cases and finds that the Court's present interpretation of "regulatory takings" sits upon a shaky foundation of split decisions; the Court's construction of the "constitutional property" remains a work in progress.

It finds today's Supreme Court is fundamentally split into two blocs. This "Great Divide" is sometimes attributed to a difference in judicial philosophy. Those in the Court's conservative wing are typically described as practitioners of "judicial restraint." Those in the Court's liberal wing are said to be "judicial activists" who are intent on reconstructing the Constitution's language to meet the exigencies of the times.

The Court's "constitutional property" jurisprudence belies this stereotype. Its right wing is seeking to define the Takings Clause, beyond its original meaning, so as to discourage government activity. Conversely the left wing is more than willing to give wide discretion to legislative bodies to impose regulations without paying compensation to disappointed property owners.

Ben Barros

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