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SCOTUS has chance to clarify the muddy waters of takings jurisprudence in Cedar Point

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Unread 01.08.21, 05:42 PM
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SCOTUS has chance to clarify the muddy waters of takings jurisprudence in Cedar Point

01.07.21 09:52 AM

From before the founding, the “fundamental maxims of a free government [have] seem[ed] to require, that the rights of personal liberty and private property should be held sacred.” The Takings Clause of the Fifth Amendment exists to protect those sacred rights from unfettered state appropriation by requiring: first, that any taking of private property be for “public use”; and second, that “just compensation” be paid for any property taken. When it comes to transferring private property to public ownership, such as taking land for a military installation, or to private parties for a public purpose, such as for public utilities, application of the Takings Clause is relatively straightforward. But the advent of the Penn Central “regulatory takings” test in which a property can be deemed to be taken if a regulation curtails its lawful use to the extent that its effective value has been severely diminished, combined with cases such as Pruneyard Shopping Center v. Robins and Kelo v. New London, in which the rigorous requirements of the Fifth Amendment gave way to other considerations, have muddied the waters. But across time, one principle has held firm: Physical invasion of property that deprives the owner of the right to exclude […]

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