Regulatory Taking - Constitutional History

Constitutional History

The authors of the United States Constitution had come from a country where feudal property rights derived originally from the King and the nobility. In the 17th and 18th century, the concept of property rights was changing dramatically. “By the 16th century, there was no 'free' land in the British Isles or in Western Europe. Every acre was owned by someone, either a private individual or by government in the form of the Crown. The laws of primogeniture and entail meant that an estate of land had to be passed on intact to the oldest son, and those without land were in large measure powerless.” Of particular importance at this time were the writings of the great English political theorist John Locke (1632–1704). To Locke, private property arose out of natural law and existed prior to the creation of government. The right to own property, therefore, did not depend upon the whims of a king or parliament; to the contrary, the primary purpose of government was to protect rights in property, since these rights were at the base of all liberties.

It is not likely that our founders considered the right to ownership of property as absolute. They understood that in a community, ownership of property, indeed the very value of property itself, rested to some extent on mutual obligations. “Ownership in land — the most tangible, and in the early days of the Republic, the most important form of property — had never meant absolute control over that property or an unfettered right to use it in any way the owner wanted. Traditions going back to English common law have always placed restrictions on property. The common law doctrine of nuisance, for example, prevented owners from using their land in a way that interfered unreasonably with the rights of their neighbors. Custom often allowed hunting on private, unenclosed land, or required that an owner allow access to rivers and lakes. Property in the form of businesses also had regulations on them; taverns, ferries and coach lines, for example, were often heavily regulated in both England and the North American colonies.” While our founders regarded the right to own property as sacrosanct, they certainly did not regard that right as implying immunity from regulation.

The government must take property for roads, for government buildings, for parks, military bases, airports and to preserve water supplies. The power to take private property for public purposes is essential to the ability to maintain, preserve and defend our republican form of government. The Fifth Amendment to the United States contains important protections against federal confiscation of private property. It states:

No person .....{shall be} deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The text of this clause seems to provide three separate protections. The first prevents the federal government from depriving a person of property without due process of law. It applies to any deprivation of property, not just takings for public purpose. The second prevents the federal government from taking private property for private use, and the third requires payment of just compensation when property is taken for public purposes.

Until 1896 the Fifth Amendment Taking Clause applied only to the federal government. Thereafter it was held that the Just Compensation Clause is incorporated in the Due Process Clause of the 14th Amendment which does apply to states. The problem of sovereign immunity of the United States was solved when Congress enacted the Tucker Act which consents to lawsuits against the federal government in the U.S. Court of Federal Claims which sits in Washington, DC, but hears taking cases from all over the country. .

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