The American Takings Revolution and Public Trust Preservation : A Tale of Two Blackstones

The U.S. Constitution was forged out of a revolution that both rejected and embraced aspects of English legal tradition. The Takings Clause and its subsequent jurisprudential interpretation represents a rejection of what the Framers at the time and constitutional Reframers since that time viewed as central government over-reaching and improper interference with private property rights. The Framers left fully intact — and a different set of constitutional Reframers are increasingly seeking to use — the English common law doctrine of public trust to prevent private property rights from trumping the public’s interest in certain resources, especially in the coastal zone. This doctrine inherently conflicts with the Takings Clause in many cases, for if a resource is protected by the public trust, then any restrictions on property made pursuant to that protection cannot result in a taking — the restrained activity was never part of the property owner’s bundle of property rights to begin with. This essay highlights the inevitable legal tension between the Takings Clause and public trust doctrine and its implications for coastal zone resources in a time of climate change. The article explores three implications of the Takings Clause-public trust tension: (1) resolution of future legal controversies related to climate change along the coast; (2) a potential rebalancing of modern takings jurisprudence, which has arguably disturbed the appropriate balance between private property protections and the public good; and (3) the creation of better governance structures through institutional design enhancements and adjustments — in this case focusing on the institution that is U.S. constitutional law