This article discusses the right to just compensation for regulatory takings of private property in the context of the history of the right to property in England and the founding generation in the United States. It challenges the conclusions of an influential 1964 Yale Law Journal article by Professor Joseph L. Sax, demonstrating that Professor Sax’s misplaced reliance on continental writers rather than English writers lead him to adopt a more statist understanding of the Takings Clause of the Fifth Amendment than is warranted by its history.
This article demonstrates how the Magna Carta was intended to strengthen tenure in land by insisting on due process requirements for the taking of land and compensation for the taking of certain classes of chattels, and shows how the control of land was a significant source of political power and personal liberty. The article continues by demonstrating the importance of property in the turbulent political developments of the seventeenth century, including King Charles’ creative methods of taxation without the consent of the people through Parliament, and the importance of property in the Petition of Right that was forced on the King. The article compares the Petition of Right and surrounding events with the justifications given by America for separating from the British Crown in the Declaration of Independence. It also discusses the role of property during the interregnum and the important political writing of that time.
The article further discusses the importance of property during the American Revolutionary era, including opposition to taxation without representation, and demonstrating the relationship between takings and taxation in that period. The article also discusses the historical problems of Professor Sax’s approach to regulatory takings and modern misconceptions about the history of the Takings Clause. The paper concludes that the right to property is fundamentally defined by control and, therefore, regulation of property can take property by depriving the owner of control. This paper further concludes that the distinction between taxation that applies universally and takings that apply more narrowly is critical to determining whether a regulatory taking has occurred. This means that a regulation that is more general is less likely to constitute a taking than one that is more specific. The article also concludes that a taking may occur where the executive is provided with significant discretion to direct the use of property.
Available at: http://works.bepress.com/jeffrey_teichert/1/