Martin Lockman (William & Mary Law School) has posted Can State Constitutional Amendments Be Takings? (Michigan Law Review, forthcoming) on SSRN. Here is the abstract:
Property is protected against government seizure by the Fifth Amendment, which provides that private property may not be “taken for public use, without just compensation.” However, property entitlements are primarily defined by state, rather than federal, law. This explanation raises an obvious question: if state law defines property, can states redefine property without violating the Takings Clause? This simple question has never been fully answered.
This Article explores a crucial but completely unexamined aspect of takings law: Does the Fifth Amendment prohibit state constitutional amendments that redefine property rights? This “amendment takings” question cuts to the heart of a federalist tension embedded in takings doctrine. When the modern Supreme Court overturns state property laws, it purportedly does so to vindicate more fundamental (but unspecified) “background principles” of state law. Amendment takings put this claim to the test: Can any state action rewrite these background principles, or are the Court’s “background principles” creatures of federal, not state, law?
A growing state-led environmental rights movement may finally force the courts to answer this fundamental but unexamined question. In response, this Article offers the first scholarly examination of the “amendment takings” question. In doing so, it reveals that the Supreme Court has repeatedly debated, and repeatedly dodged, this question across a series of high-profile 20th-century cases, and identifies a groundswell of state environmental constitutionalism that may finally force the Court to clarify states’ power to amend federally protected property rights. Finally, it outlines three possible answers to the issue of amendment takings: (1) Constitutionally-defined property, (2) state-defined property, or (3) a procedural Fifth Amendment. This Article then explores the implications of each path for the development of property law. In doing so, this Article offers a roadmap for scholars, judges, lawmakers, and litigants to answer a question as old as the Constitution: How are property rights created, changed, and destroyed in the American constitutional order?
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