Taking "Justice and Fairness" Seriously: Distributive Justice and the Takings Clause


Since the 1960 case of Armstrong v. United States, the Supreme Court has repeatedly stated that “the” purpose of the Takings Clause is to prevent burdens falling on individual landowners that should in “justice and fairness” be born by society as a whole. The essay argues that this embodies a concept of distributional justice and further argues that the Court has failed to adequately consider the implications of such a conception as the basis of Takings analysis. The essay, after describing the origins of the Armstrong principle, discusses four implications: first, the rejection of a rights- based conception of the Takings Clause implicit in a focus on distributive justice; second, the reevaluation of current Takings factors in terms of distributive justice; third, the expanded philosophical literature that would be available to assess Takings issues; and finally, the implications of relying on unelected judges conceptions of “justice and fairness” to resolve Takings disputes. The essay does not attempt to fashion a new Takings approach but does serve to highlight the unexplored implications of the Armstrong principle.


Constitutional Law | Jurisprudence

Date of this Version

September 2006