Honors College Thesis
 

Twentieth Century Takings Jurisprudence: A Dual Expression of Classical Liberalism & Civic Republicanism

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https://ir.library.oregonstate.edu/concern/honors_college_theses/bc386m17f

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  • This study explores the extent to which the United States has conformed to the tenets of classical liberalism and/or civic republicanism with regard to private property and takings law. Mainstream scholarship suggests that classical liberal theory has played a dominant role in American property law since the founding. In the 1960s, however, some scholars began to challenge the assertion that America ever exhibited a monist approach to property, proposing instead that two traditions have always existed in tandem: property as “commodity” (the familiar liberal view) and property as “propriety” (the less familiar view of civic republicanism). I propose that the chain of twentieth century takings jurisprudence supports the dual tradition hypothesis. Eminent domain jurisprudence (specifically, the reading of public purpose from the Public Use Clause in the Fifth Amendment) represents adherence to the principles of civic republicanism. Regulatory takings jurisprudence, in contrast, corresponds strongly with the classical liberal view of private property.
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