Property Rights and the Takings Clause

dc.contributor.advisorBrogdon, Matthew
dc.contributor.authorVan Winkle, Brendan
dc.contributor.committeeMemberLaracey, Melvin
dc.contributor.committeeMemberMathie, Mary
dc.date.accessioned2024-03-08T15:58:09Z
dc.date.available2024-03-08T15:58:09Z
dc.date.issued2017
dc.descriptionThis item is available only to currently enrolled UTSA students, faculty or staff. To download, navigate to Log In in the top right-hand corner of this screen, then select Log in with my UTSA ID.
dc.description.abstractProperty 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.
dc.description.departmentPolitical Science and Geography
dc.format.extent60 pages
dc.format.mimetypeapplication/pdf
dc.identifier.isbn9780355167184
dc.identifier.urihttps://hdl.handle.net/20.500.12588/5839
dc.languageen
dc.subject.classificationLaw
dc.titleProperty Rights and the Takings Clause
dc.typeThesis
dc.type.dcmiText
dcterms.accessRightspq_closed
thesis.degree.departmentPolitical Science and Geography
thesis.degree.grantorUniversity of Texas at San Antonio
thesis.degree.levelMasters
thesis.degree.nameMaster of Arts

Files

Original bundle

Now showing 1 - 1 of 1
No Thumbnail Available
Name:
VanWinkle_utsa_1283M_12352.pdf
Size:
329.17 KB
Format:
Adobe Portable Document Format