The Constitution and Property: Due Process, Regulatory Takings, and Judicial Takings

Regulatory takings and judicial takings are judicial works in progress. The Supreme Court has charted a reasonably clear path out of the regulatory takings maze, one that allows the courts to redeem constitutional property protections by resorting to due process-like principles. The Court has not yet, however, confronted the divergence of its jurisprudence regarding judicial takings, nor indicated whether courts are subject to the same constitutional limitations that apply to legislative bodies. Thus, although the Court has significantly clarified the law since Justice Holmes announced in Pennsylvania Coal that government cannot go "too far" in regulating property, many significant takings issues await future resolution.

A proper resolution of these issues, it is submitted, will hold that due process principles apply not only in determining whether legislatures have "taken" property, but also in determining whether courts have exceeded constitutional bounds by defining property. Thus, the increasing infusion of due process principles into takings jurisprudence is supported by the principles of fairness that are at the heart of both doctrines, and allows the courts to evaluate government's right to regulate property in light of the nation's traditions and values.