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Vanderbilt Law Review

David C. Buck

First Page

1283

Abstract

In 1922, the Supreme Court embarked on its first decision to protect property owners from unbridled, uncompensated government regulation. Prior to Pennsylvania Coal Co. v. Mahon, the courts applied the Just Compensation Clause of the Fifth Amendments only to "'direct appropriation[s]' of property ... or the functional equivalent of a 'practical ouster of [the owner's] possession.' " Mahon established that governmental regulation that affects an owner's use of his land may constitute a taking under the Fifth Amendment. In Mahon, Justice Holmes recognized the need for constitutional limits on the government's power to impair certain rights inherent in the ownership of property, especially when abolishing those rights has the same effect as appropriating or destroying the property itself. Justice Holmes understood that human nature gradually would lead government officials to qualify the rights of ownership under the guise of police power until, at last, private property disappeared.' Without a check on their powers, officials may use regulation as an off-the-books method in lieu of taxation and compensation to achieve certain goals, particularly when funds are unavailable or when it appears that taxpayers will not support such a use of available funds. This abuse of the police power, Justice Holmes observed, amounts to "petty larceny." The Just Compensation Clause of the Fifth Amendment provided the protection necessary to check this natural Hobbesian tendency.'

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