In United States v. Armstrong, the Supreme Court stated that the Fifth Amendment Takings Clause “was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” In effect, the Supreme Court grounded the Takings Clause in principles of distributive justice. The purpose of this Article is to consider some of the implications of incorporating a principle of distributive justice into the Fifth Amendment. It begins with an analysis of the origins of Fifth Amendment regulatory takings analysis and the basis (or lack of one) for the inclusion of a principle of distributive justice. Next, it briefly discusses the concept of distributive justice reflected in the Armstrong principles of “justice and fairness.” Finally, it addresses four key implications of incorporating a conception of distributive justice into the Takings Clause. First, a focus on distributive justice is a move away from an assessment of government regulation of private property based on individual “rights.” Second, the traditional takings factors previously advanced by the Court can be seen in a new way if analyzed in light of principles of distributive justice. Third, a focus on distributive justice may open new sources for evaluating takings. Finally, a concern for distributive justice raises troubling questions about the legitimacy of decisions grounded, not in history or neutral principles, but in an unelected judiciary's views of principles of justice and fairness. A grounding of the Takings Clause in these ethical principles may suggest an extremely limited role for the Court in finding a regulatory taking.
Creighton Law Review
Jeffrey M. Gaba, Taking Justice and Fairness Seriously: Distributive Justice and the Takings Clause, 40 Creighton L. Rev. 569 (2007)