It is black-letter law that the U.S. Supreme Court’s takings doctrine presupposes exercises of eminent domain are in pursuit of valid public uses that require just compensation. But, neither federal doctrine nor the text of the Takings Clause offers any additional constraints. The story of the Supreme Court’s takings jurisprudence is, in other words, incomplete and deserves reexamination. However, the usual protagonists, such as the Supreme Court or federal courts, are not central to this Article’s reexamination. Instead, this Article’s narrative is federalism, its characters are state courts, and its script is state constitutions.
In the post-Kelo v. New London era, state legislatures and courts diverged from federal takings doctrine to expand property protections beyond the constitutional floor set by the Supreme Court. Property scholars, however, have paid less attention to a doctrinal lacuna left behind after the nationwide state legislative backlash: state courts’ failure to recognize an implicit obligation of local municipalities to satisfy “general welfare” principles when taking private property for economic development purposes as a matter of state constitutional law. The proposition of this Article is simple: state public use clauses should be understood to equate with state police power general welfare principles. This is what I call “state constitutional general welfare doctrine.”
This cross-pollination of police power and takings doctrine also reveals that takings doctrine is highly fluid and malleable, capable of incorporating a variety of constitutional doctrines, such as substantially advances tests, exactions doctrine, and equal protection doctrine, to provide greater alternative conceptions of protections to private property. The commingling of state police power principles, such as general welfare, as equating with “public use” is just another example of takings doctrine’s ability to mold in a manner to provide enhanced protections to private property beyond the Supreme Court’s constitutional bottom.
Gerald S. Dickinson,
State Constitutional General Welfare Doctrine,
Cardozo Law Review
Available at: https://scholarship.law.pitt.edu/fac_articles/79
Constitutional Law Commons, Housing Law Commons, Land Use Law Commons, Law and Society Commons, Property Law and Real Estate Commons, State and Local Government Law Commons, Supreme Court of the United States Commons