Private Property Rights: The Development of Takings in the United States

Abstract

AbstractConstraints upon the uses of private property in the United States have increased very far beyond the doctrines of Grotius, Locke, Blackstone, and the framers of the Constitution. In the 19th century, both public nuisance limitations and eminent domain takings were applied to particular holdings, with the latter requiring compensation under the Fifth Amendment. The New Deal of the 1930s and the envirommental movement of the 1960s radically changed the relationship of government to private property. Sweeping economic reforms and the exercise of broad regulatory powers by public agencies for a clean environment and biological diversity led to a wholesale "taking" of private property without compensation. Recent cases of the Supreme Court involving wetlands and coastal property reveal the tensions that exist between sovereign power for the public good and the protection of individual property as a bulwark against arbitrary government.