Property Rights in the Ninth Circuit and Beyond

Under modern constitutional law, rights in real property are protected principally by the Just Compensation Clause of the Fifth Amendment (incorporated as against the states by the Fourteenth Amendment’s Due Process Clause) and the substantive component of the Fifth and Fourteenth Amendment’s Due Process Clauses. For the past several decades, however, these rights have been disfavored in the federal courts. Even as there was a renaissance for constitutional protection of property rights in the late 1980s and early 1990s, property owners were losing the ability to vindicate these rights in federal courts. By 1997, property owners in the Ninth Circuit
could invoke neither the protections of the Takings Clause or the substantive component of due process when faced with objectionable land use regulation....