Property Rights and the Takings Clause

Property rights are fundamental rights. Fundamental rights generally have special constitutional status whereby courts make it difficult for government to infringe on these rights. But the Supreme Court's takings jurisprudence has ignored the fundamental character of property rights. The Court has focused on the power being exercised instead of the right being burdened. By focusing on the power, the Court avoids applying a stringent judicial review that ordinarily accompanies infringements on fundamental rights. Fundamental rights receive their heightened protection from such review. Courts should apply substantive due process to takings.

Chapter One argues that property rights deserve heightened protection because they are fundamental and constitutionally enumerated.

Chapter Two outlines the history of the takings clause and the Court's interpretation of it. Takings decisions have focused too heavily on eminent domain power while ignoring property rights.

Chapter Three explains why the Court's takings decisions have weakened property rights. The Court uses a powers-focused approach to takings instead of a rights-focused approach. Fundamental rights receive their protection from rights-focused approaches. Without recognizing the right, there is no opportunity to protect property rights.

Chapter Four develops a rights-focused approach to apply to takings. The approach uses substantive due process. Substantive due process allows courts to protect the most significant property while also preserving some eminent domain power that is essential for good government. The balance is met by triggering different substantive tests based on the kind of property being taken. Takings involving significant property should trigger strict scrutiny.