Two clauses of the United States Constitution figure most prominently in the debate over the constitutional limits on the governmental power to regulate land. They are the just compensation clause of the fifth amendment and the due process clause of the fifth and fourteenth amendments. Neither the courts nor the commentators agree, however, on which provision to apply. Courts frequently confuse and blend the distinct concepts of: (1) taking property without payment of just compensation, and (2) depriving a person of property without due process of law. This confusion has resulted in disparate results as well as in conflicting analysis. A particular regulation might be ruled a "regulatory taking" in one state, struck down as a denial of due process in another, and upheld as a valid police regulation in a third. This Comment has three aims. First, it traces the history of substantive due process and regulatory takings to show how the courts have unwittingly interwoven strands from the two doctrines. Second, this Comment demonstrates that the underlying theory of each test requires that each be kept separate and distinct from the other. Last, the Comment shows that because the substantive due process test offers greater flexibility than the takings test it is a superior tool for evaluating the constitutionality of land use regulations.
Ross A. Macfarlane,
Testing the Constitutional Validity of Land Use Regulations: Substantive Due Process as a Superior Alternative to Takings Analysis,
57 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol57/iss4/6