What Federalism Tells Us About Takings Jurisprudence

Abstract

This Article discusses a niche within a niche: Federalism considerations in theories of governmental takings of property. Several property and land use theorists have argued that larger-scale and smaller-scale legislative bodies should be treated differently in takings jurisprudence, because these differently scaled legislatures are likely to behave differently in dealing with individuals' property and to respond differently to compensation requirements. I agree with this general proposition, but I sharply disagree with the centralist drift of most of this literature, which favors the national legislature while imposing strict takings requirements on local legislatures. I argue that these analyses overlook the existing constraints on smaller-scale governing bodies. Meanwhile, the courts have paid very little overt attention to federalism concerns of any kind in takings jurisprudence, string citing cases about local, state, and national governments without differentiating them. Instead of responding to federalism (and other) takings theories, actual takings jurisprudence vacillates between leniency toward all legislatures and contempt for them. I argue, however, that federalism considerations might help courts to analyze the legislative process, and they might be incorporated into takings jurisprudence by a distinction between Fifth Amendment and Fourteenth Amendment takings.