An argument for the compensability of regulatory takings under the Fifth Amendment

The state of Takings Clause jurisprudence is a twisted myriad of confusing and incongruous rules, tests, and decisions that provide little or no guidance regarding the protections afforded us in our property. There is an overwhelming need for a clear and concise standard with which to determine the compensability of Takings. Additionally, the "stick by stick" erosion of our rights in property serve as a harbinger that the individual rights are property and as such each may be compensable as a Taking. The remedy for this "rudderless" area of law is the "reasonable person" standard. This paper will look at the history of the Takings Clause and its jurisprudence, beginning with the Magna Carta and through cases like Palazzolo and Kelo. Dozens of cases are analyzed and reviewed referencing the opinions of this author (with an eye towards the reasonable person standard of review) as well as opinions of untold dozens of scholars who have written in this area of law. The results of the analysis of dozens of cases make it abundantly clear that the Supreme Court has acted in a knee-jerk fashion in deciding cases. The past cases are so inconsistent that a justice could reach any decision in a matter and claim to be respecting stare decisis. This author then examines the meaning and applicability of the "reasonable person" standard (which is applied in most other areas of law) and its practical applicability to Takings Law. The reasonable person standard would give the owner of a property more clear guidance in what the scope of their ownership rights are and when an infringement of a right should lead to compensation for the taking of that right. Each and every right that we have, according to the Framers, is a property right and as such is protected by the 5th Amendment. The taking of diminution of those individual sticks in property must be subjected to compensability scrutiny and the best vehicle for doing so is the reasonable person standard.