William & Mary Environmental Law and Policy Review


Andrew Parslow


Since man first left the state of nature and formed property rights, there have been issues when states desire to use the property of another for what they consider to be the greater good. In their wisdom, the Founding Fathers of the United States built on centuries of historical principles ranging from the Romans to the English and enshrined in the Fifth Amendment the common law notion that “private property [shall not] be taken for public use, without just compensation.” The rise of environmentalism has brought a new frontier to the ancient struggle between the rights of individuals and the rights of the government over private property as new types of regulation unforeseen by the Founders raise questions, such as what constitutes a taking and for what actions must the government provide compensation.

On the forefront of these arguments regarding the scope of the Fifth Amendment is the regulatory takings doctrine. The first major case to draw attention to the view that severe regulation can amount to a taking was Pennsylvania Coal Co. v. Mahon. In Pennsylvania Coal, the Court found that a state act that banned the mining of anthracite coal, if doing so would destabilize human habitation, could not retroactively deny a party’s contracted mining rights to a plot of land. More importantly, it introduced the view that the Fifth Amendment’s protection against uncompensated takings applies to a decrease in value from regulation.

This is an issue of grave importance for environmental regulation, for if the government is required to compensate every landowner whose property loses value from a regulation, then they will quickly become prohibitively expensive or, at the very least, highly unpopular due to their cost. Much ink has been spilled on this issue; however, the vast majority of environmental law literature opposes it. There is a wide spectrum of opposition, ranging from other nations’ standards to application difficulties. Of particular note is the argument that the Founding Fathers never intended for the takings doctrine to apply to a decrease in value due to regulation. If this statement were true, then the argument for a constitutional requirement to compensate regulatory takings is greatly weakened.

Due to the fact that courts have been upholding regulatory takings claims, the balancing of a constitutional right (security in one’s property), and the serious potential ramifications for environmental law, it would be a shame for the issue to only be explored from one angle. In this Note, I will argue in favor of the regulatory takings doctrine, particularly that, while environmental regulation was not foreseen by the Framers, had they known, they would have intended for the Fifth Amendment to cover regulatory takings. This analysis will be done through the lens of Blackstone’s Commentaries on the Laws of England. Introduction, Section 2 of the Commentaries addresses the ideal manner in which to interpret the meaning of a law or doctrine. Since the influence of Blackstone on the drafters of both the Constitution and the Bill of Rights cannot be disputed, this should provide an accurate reflection of how it was expected to be interpreted. This argument will be further augmented by background historical sources and events that clearly had an influence on the drafting of the Fifth Amendment and can shine a better light onto its intent.

As explained by Blackstone, there are five tiers which should be used to interpret the “will of the legislator” when an amendment was drafted. First, through the plain meaning of the wording of the statute. Second, through context by analyzing other parts of the document as well as similar documents by the same drafters. Third, the meaning of the words in regard to the purpose of the amendment. Fourth, considering hypothetical situations that will result from its application. Finally, by simply trying to understand the reasoning behind the law.

Part I will address the historical background of eminent domain, starting with its inherent roots in the establishment of property rights in English common law under Henry II, to the place it held in the minds of the men responsible for the drafting of the American Takings Clause. Part II will be composed of a five-tier analysis of the doctrine in the manner prescribed by Blackstone. Part III will address how best to interpret the results of the analysis in Part II and to consider it for future environmental regulation.