William & Mary Bill of Rights Journal


Jan G. Laitos

Article Title

Takings and Causation


Constitutional protection of private property is grounded in a conflict between two legal principles--the government's power to regulate private property for the common good and the Constitution's limit on this power in the Takings Clause. The Takings Clause's check on government power conforms to John Rawls's philosophy, which rejects the utilitarian beliefs that government may act to achieve* the "good" of maximizing human happiness and that government can force people to trade certain political liberties for an improved distribution of wealth. Under Rawls's theory, the principle of "justice as fairness" limits a government's ability to require some people to bear burdens in order to advance public goals, and the principle of "equal liberty" eventually leads to Pareto-optimality.

In this Article, Professor Laitos notes that for many years, the United States Supreme Court adopted a utilitarian perspective when it deferred to legislative judgments furthering general public goals. Recently, however, the Court's Takings Clause jurisprudence has shifted markedly toward Rawlsian theory. Under the Court's current jurisprudence, a government allocates burdens improperly if it singles out an impacted property owner to bear the cost of a regulation, despite the fact that the owner's property use did not cause the problem that the regulation addresses. Professor Laitos concludes that this causation test is not a perfect predictor of when laws work unconstitutional takings, but routine application of the test to regulations affecting property should help courts void unfair and unjust government rules that select from the private sector convenient targets to pay for benefits for which the public should be responsible.