The Spurious Constitutional Distinction Between Takings and Regulation

Engage Volume 11, Issue 3, December 2010
By Richard A. Epstein
December 23, 2010

The major question that I shall address in this short talk concerns a fundamental fault line that is widely embraced in modern American constitutional law. My task is to figure out whether the American constitutional law of takings has a uniform architecture that applies with equal force to cases of government occupation in so-called “physical takings” cases and government regulation in so-called “regulatory takings” cases. For these purposes, I shall confine my attention to real property, and thereby ignore such critical issues as financial rate regulation of public utilities on the one hand or the regulation of intellectual property on the other. In the land context, the difference between these two scenarios is usually not that hard to observe in most settings. A physical taking is said to occur when the government occupies land that was once in the possession of some private party. Or, in the alternative, the government issues an order that allows some private party to enter the land under its authorization. The pivot point is found whenever an owner is allowed to remain in possession, but is forced to share that possession with either the government, or again, private parties who enter under government authorization.