American University Law Review
October, 1999
ARTICLE
Regulatory Takings and Original Intent:
The Direct, Physical Takings Thesis "Goes Too Far"
Andrew S. Gold*
INTRODUCTION
Due to a scant and ambiguous historical record, the original intent of the Fifth Amendment Takings Clause cannot be known. Yet, with increasing frequency, commentators have declared that the original understanding of the Takings Clause only covered direct, physical takings. In fact, this direct, physical takings thesis lacks historical support. Contrary to most recent scholarship, the text and historical record of the Takings Clause arguably support a just compensation requirement for regulatory takings. The existing evidence, however, is sufficiently ambiguous to preclude a clear sense of the original understanding.
It is the thesis of this Article that most scholarly commentary on the original understanding of the Takings Clause does not address the actual original understanding, but merely the wisdom of adopting one of the various historical views on eminent domain. In particular, the constitutional text and pre-ratification history relied upon by the direct, physical takings thesis offers insufficient evidence to prove just compensation excludes regulatory takings. In contrast, the post-ratification commentary of James Madison, author of the Takings Clause, and the influential philosophies of William Blackstone, John Locke, and Hugo Grotius appear to support a regulatory takings analysis.
* Associate, Venable, Baetjer, Howard & Civiletti, LLP, Washington, D.C. J.D., Duke University; B.A., Dartmouth College. The author would like to thank Benjamin Barros, Laura Underkuffler, and Donald Kochan for their comments on earlier drafts, and the Honorable Loren Smith for his insights into the Takings Clause generally. The views contained in this Article are entirely the authors own, and do not necessarily represent the views of Venable.
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