In a series of seminal cases interpreting the Fifth Amendment's Takings Clause, the United States Supreme Court has used arguments that can be called "historical" to justify its holdings and negotiate the relationship between the static language of the Constitution and the dynamic realities of American life. While historical arguments have been a recurring theme in Takings Clause jurisprudence over the past eighty years, the way in which they are used has shifted. While historical accounts of changes in American society over time once served to justify new forms of governmental intervention in the realm of private property, a new historical discourse appears to be emerging. This "new" historical argument identifies a static historical norm—a "historical compact," in Justice Scalia's words—in early American society and seeks to bring modern Takings Clause jurisprudence into harmony with it. This Note begins by examining the way that history has been deployed in critical Takings Clause cases and identifies two modes of historical argument within the case law. It then compares the content of the putative "historical compact" with the historical realities of the government/property interface in early America. Ultimately, it embraces the once-prevalent "dynamic" use of history and concludes that the static "historical compact" championed by conservative Justices in recent Takings Clause cases is not a reflection of historical reality, but is rather a rhetorical device that masks judicial activism as adherence to tradition.
The Uses of History in the Supreme Court's Takings Clause Jurisprudence,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol81/iss3/23