The Original Understanding of the Takings Clause and the Political Process

Social conflict over property rights: the end, a new beginning, or a continuing debate?

“…Bosselman, Callies, and Banta. 1973;Ely 1992;Treanor 1995). Even before the United States emerged as a new country, colonial governments passed local laws which seem to be clear antecedents to modern land use and environmental regulations.…”

“…Even before the United States emerged as a new country, colonial governments passed local laws which seem to be clear antecedents to modern land use and environmental regulations. For example, colonial Virginia regulated tobacco-related planting practices to require crop rotation and prevent over planting, and colonial Boston, New York City, and Charleston all regulated the location of businesses such as bakeries and slaughterhouses, often to the point of excluding them from existing within city limits (Treanor 1995).…”

Introduction: Is all that is Solid Melting into Air?

“…It was not until the adoption of the Bill of Rights in 1791 that the disagreements among the founders found a degree of consensus in the wording for the taking clause, the final 12 words of the Fifth Amendment 'nor shall private property by taken for public use, without just compensation.' But as has been noted by countless scholars, our understanding of the exact meaning of these words to those who crafted them is unclear (for example Ely, 1992;Treanor, 1995;Jacobs, 1999a). The clause defines neither private property, takings, public use nor just compensation.…”

“…During colonial times local governments exercised land-use regulatory control analogous and clearly traceable to modern land-use and environmental zoning regulations. For example, colonial Virginia regulated tobacco-related planting practices (to prevent overplanting and require crop rotation), and Boston, New York City and Charlestown regulated the location of businesses such as bakeries and slaughterhouses, often (for the latter) to the point of exclusion (Treanor, 1995).…”

An Alternative Perspective on United States–European Property Rights and Land Use Planning: Differences Without Any Substance

“…From the time of the founding of the American colonies through the whole of the 19th century, regulatory takings did not exist in American jurisprudence or how American governments and individuals related to each other (Bosselman et al 1973, Treanor 1995. When government regulated land use, it was free to do so for various reasons, and the individual, while he might be aggrieved and seriously burdened by the regulation, had little recourse.…”