It is thus as an armchair originalist that I pose three questions about the use of history to support the dominant academic view that the compensation requirement of the Fifth Amendment's Takings Clause, as originally understood, extended only to physical appropriations or invasions of private property by the government. This position, which I will refer to as the "standard account" or "standard historical account," certainly has attracted forceful dissents in the academy, most notably by the authors featured in this Symposium issue. The view that Takings Clause protection against so-called regulatory takings is ahistorical, however, is commonly accepted enough to earn the endorsement of even Justice Scalia, who is both an originalist and a supporter of regulatory takings protection.
Nicole S. Garnett,
"No Taking Without a Touching?" Questions from an Armchair Originalist,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol45/iss3/8