Constitutional v. Statutory Takings Protections: Is One Really Better Than the Other?

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Article | 100 KY. L. J. ONLINE 4 | June 16, 2012

Duane L. Ostler

A number of constitutional and statutory provisions constrain a “taking” at the state level in the United States. All states but one have specific takings protection language in their state bills or declarations of rights, modeled after the Fifth Amendment to the U.S. Constitution. Additionally, through the “incorporation doctrine” of the Fourteenth Amendment, federal takings protections of the Fifth Amendment are applied directly to state acts. Each state also has portions of its statute books devoted to eminent domain. Finally, the common law itself has been understood to provide basic takings protections, from the days of the Founding Fathers. The importance of these multiple levels of takings protections is rarely questioned. Federal and state constitutional and statutory takings protections are clearly assumed as the best way to deal with government appropriations of private property, with the emphasis on constitutional protections as construed by the courts.  These are considered the highest level of protections and trump any statutory or common law protections. And as regulatory takings have assumed prominence in modern times, constitutionally based takings law has become the tool to identify the existence and scope of such takings. But what if it were not so? What if there were no constitutional protections that applied to state takings at all? What if state legislation and the common law were all that protected private property owners faced with an expropriation? Would private property be any less secure? Would property owners fear for their rights? Would current approaches to regulatory takings be the same? In short, are the constitutional protections really necessary? Would the realm of regulatory takings be less difficult if the constitution were not the tool to identify them? This article addresses these questions. Rather than speculate about the consequences of having no constitutional takings protections, however, the article contrasts the constitutional takings protections in the United States with those in Australia, a similar country in which there are indeed no constitutional takings protections at the state level at all. Part One briefly traces the formation of constitutions in the United States and Australia, and examines why specific constitutional takings language was adopted in 49 of the 50 American states, but not in any of the Australian states. Part Two contrasts eminent domain legislation in both countries to see the extent of protections that private citizens enjoy, with particular emphasis on regulatory takings. As this part demonstrates, in a country without constitutional takings protections, physical and regulatory takings tend to be seen as legislative functions and more statutes tend to be enacted to cover such cases. Accordingly, protections still exist for such takings. Indeed, legislatures often prove surprisingly adept at addressing regulatory taking questions. This suggests that constitutional takings protections may be less essential than is often thought. However, constitutional takings protections still present an obvious benefit where statutes fail to provide an adequate remedy in a regulatory case. The question becomes one of balance between court-applied regulatory takings law and legislatively enacted regulatory takings laws. The increasing number of American state regulatory takings statutes suggests a shift in oversight of regulatory takings from the judiciary to the legislature. If this trend continues, constitutional takings protections may soon be seen primarily as a “backup,” to be used only where the legislature fails to adequately address a regulatory taking situation.

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Constitutional v. Statutory Takings Protections: Is One Really Better Than the Other?


Duane L. Ostler, Constitutional v. Statutory Takings Protections: Is One Really Better Than the Other?, 100 Ky. L.J. Online 45 (2012),

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