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Hastings Law Journal

Abstract

Eminent domain has evolved to encourage almost every conceivable type of economic development. In response, opponents have argued that the proposed takings are not for a "public use" as that term is used in the Fifth Amendment. They argue that "public use" was intended to operate as a substantive limit on government takings. Part I of this Article will explore the civil law theories that inform most modem judicial and scholarly commentary on eminent domain and the confusion that has resulted from this relatively recent misreading of the constitutional history and text. However, judicial supervision of legislative expropriations would have been foreign to the Founding Generation, who generally understood that the principle of consent inherent in a representative government reserved the sole power to expropriate property to the legislature. Thus, Parts IE and III show that the origins of eminent domain are found in the long struggle for legislative supremacy between Crown and Parliament that also culminated in the American Revolution. From early on, English law prohibited the Crown from expropriating property; Parliament alone expropriated property, which was an exercise of its right to consent on behalf of the estates. Part IV argues that American theorists drew on this heritage and left little room for supervision by the judicial branch. The drafters of the Fifth Amendment, drew upon this principle of consent to ensure that property would be safe from executive expropriation. Aside from the requirement that an owner receive compensation, Congress did not intend to limit the pre-existing power of the legislature to expropriate property. Thus, Part V concludes that what is commonly thought to be a takings clause is nothing more than a compensation clause.

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