Document Type


Publication Date

Spring 2021


The greatest challenge for any civilized society is to find the appropriate balance of rights and responsibilities between the individual and society. In the United States, the Supreme Court is the ultimate arbiter of the line between individual rights and governmental powers. The prerogatives and protections for private property rights help to define that line. The Supreme Court has developed two distinct bodies of constitutional jurisprudence bearing on the protections for private property, one under the doctrine of substantive due process and the other under the Takings Clause. But the appropriate balance has been difficult to achieve, and the Supreme Court’s jurisprudence has been prone to slippage. Thus, substantive due process has lost its teeth. Unless fundamental rights are implicated, modern substantive due process claims are so unlikely to succeed they are rarely worth making. Modern takings jurisprudence has not lost its teeth, but it has become incoherent and dysfunctional. The Supreme Court does not apply its takings jurisprudence consistently across different types of claims, and its expansive interpretation of public uses has allowed government takings powers to be exploited by powerful political interests. Takings jurisprudence could be made more coherent and less dysfunctional by clarifying the nuisance rule, extending the public use requirement to all takings, and narrowing the interpretation of public uses. These refinements of takings law would empower governments to resolve nuisance conflicts, improve the coherence of the Court’s jurisprudence across different types of takings, constrain governments from using their regulatory and takings powers on behalf of special interests, and reduce the burden of government on private property.