The home enjoys a special place in American constitutional law. A doctrinal thread runs across the first five amendments that demarcates the home as a realm in which rights enjoy elevated protection. That thread covers rights involving smut, guns, soldiers, searches, and self-incrimination, but inexplicably does not extend to takings. This stark dichotomy between the solicitude of the home for most rights and the opposite for takings produces a deep puzzle.
This Article contends that the answer to this fundamental puzzle is that the Court’s takings doctrine, unlike the home-centric doctrines in the Bill of Rights, is infected with post-Lochner v. New York judicial deference to economic regulation. This has influenced the Court’s aversion to a special protections doctrine to homes under the Takings Clause. This Article argues that, as a matter of constitutional coherence theory, which prizes doctrinal symmetry and harmony, the Court should, in limited circumstances, extend the home-centric thread to protect homes in takings that expropriate title to or impact the economic value of homes.
This Article also grapples with several broader methodological, doctrinal, and theoretical implications. First, the Court consistently applies atextual methods of interpretation of the home. Second, this atextual interpretive pattern of influence supports this Article’s proposition that the home-centric doctrinal thread should extend to takings. Finally, a congruent home-centric Bill of Rights that extends to takings aligns neatly with constitutional coherence theory.
Gerald S. Dickinson,
The Puzzle of the Constitutional Home,
Ohio State Law Journal
Available at: https://scholarship.law.pitt.edu/fac_articles/77