The Takings Clause

Introduction

The Constitution of the United States is the supreme law of the United States of America. The Constitution is the foundation for the organization of the United States government and the relationship of the federal government with the states, citizens, and all people within the United States (Bastiat, pp.67). The Constitution of the United States was formed on 17 September 1787, which lays down their political and legal regulations. It provides an integrated republic model of presidential system in which the President of both state and head of government takes decisions. The political system is characterized by many as “checks and balances "called separation of powers from, legislation, control and authority to act separately, but through extensive entanglement against each other.

The state of Takings Clause jurisprudence and protection is a muddled and confusing myriad of inconsistent, incongruous, and often contradictory decisions, rules, and tests. The purpose of this paper is to suggest a more logical, comprehensive, and property owner friendly method for the courts to ascertain when a regulation goes too far and creates a compensable taking (Bastiat, pp.67). This will be accomplished by first examining the history of the Takings Clause from its earliest incarnation in Anglo-Saxon history, the Magna Carta, through some of the most recent cases decided by the Supreme Court, cases such as Palazolla and Kelo. The paper presents an analysis of the cases that have formed the current state of law. The analysis is something less than a detailed analysis of each case. Additionally, it looks at the historical settings, the then existent political climate, and, to a lesser degree, the world situation that may have influenced to Court to decide the individual cases in a certain direction. Also, there is personal commentary offering this author's opinion of many of the facts underlying the decisions and well as the outcome of the various cases.

Discussion

Background

James Madison drafted the Fifth Amendment takings clause as an additional safeguard to due process protection of property. In drafting the Fifth Amendment, Madison relied on language from the Northwest Ordinance and Massachusetts and Vermont state constitutions to convey the financial burden of public works from the individual to the public (Amar, pp. 243).

The purpose of the Fifth Amendment is to protect the property interest of private individuals. The framers of the Constitution believed popular government could pose a threat to property rights, but they also believed that a strong national government could protect property rights (Miniter pp. 190).

One great objective Of Government is personal protection and the security of Property. For many of the framers, property was intrinsically related to liberty: Property must be secured or liberty cannot exist. While the Constitution does not proclaim the natural right of property ownership, Virginia and North Carolina did request an amendment which declared that acquisition, possession and protection of property to be listed as an inalienable right.

Important Aspects of the Takings Clause

Madison, like Locke, defined 'property' to include the wide range of rights, faculties, and possessions held by an individual, and he ...