On The Interpretation Of Regulatory Takings

Regulatory Takings Issue, referring to the cornerstone of the theory of land use planning, is an American concept officially originated from Pennsylvania Coal Co. v. Mahon in1922."Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law;... The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." As is commented by Justice Homes above, his classic criticism started the theoretical era of Regulatory Takings.Through the analysis of the context and the history of the United States Constitution Fifth Amendment taking clause, and based on the terms of Grotius, John Locke and Blackstone, the pathfinder and developer of Theory of Takings, this thesis closely combines the property value and legitimate analysis and debate of American constitutional framers, especially the legislator Madison, and concludes that Regulatory Takings Issue before1922has possessed the possibility of the legality and the application. Compared with the discussion of the same period, the thesis will more clearly define how Regulatory Takings Issue coordinated the legal documentation and the relevant cases during the period of American colonization, such as Great Charter of Liberties and Colonial Charter, The Constitution of Vermont in1777, The Constitution of Massachusetts in1780and The Northwest Ordinance, etc. which are the budding of the United States Constitution, in order to prove that Regulatory Takings Issue is not a goes too far theory.The thesis will be divided into three parts. The First Part discusses the major components and the evaluation standards of the right to levy and the Regularity Takings from taking clause themselves. This part will generally make a breakthrough of Takings Clause within the context of "property". The Second Part is to narrate the original idea of taking clause and the property value of the constitutional framers, including Madison’s personal statement and contemporary comments about taking clause. The third Part is to research the legal documentation, which tended to Regularity Takings during the period of American colonization, and the relevant cases with probative value before1922. There are less domestic legal provisions and the works of the cases about the period of American colonization, so this thesis has read some foreign materials for reference. It is a practical meaning for the policy of our land use planning to clarify the Regularity Takings to find the most scientific path and for our current land use planning to understand how to draw lessons from the foreign theory.