Document Type

Article

Publication Title

University of Miami Law Review

Abstract

This issue of the University ofMiami Law Review is devoted principally to the proceedings of a Conference, which Professor Larry Alexander organized on my book, Takings: Private Property and the Power of Eminent Domain. The Conference was held in late January 1986 at the University of San Diego Law School. The arguments that surged to and fro in those sessions were among academics who had a close familiarity with the book, the structure of its argument, and the direction of its conclusions. In order to make that discussion more intelligible to the reader not familiar with Takings itself, the editors of the University of Miami Law Review have asked me to provide a brief introduction to the major themes of the book. The purpose of this introduction is to set the framework for the debate and discussion that follows.I shall save my own response to my critics until the end of this issue. At the outset it is useful to note that Takings proceeds at two levels. On the first, it is a textual analysis of one provision of the Constitution, the eminent domain clause, which provides "nor shall private property be taken for public use, without just compensation." At a second level, the book is an effort to justify that principle of social organization by showing how the systematic application of the clause has very powerful functional roots: while conceptions of social utility are hard to state and to identify, the society which adheres to the demands of the eminent domain clause will find itself better able to obtain prosperity for all of its members than one which deviates from this principle. The book therefore contains both traditional textual arguments and social justifications designed to show why the eminent domain clause, as interpreted, makes sense. Such seems unavoidable for any book which wants to serve a dual function, especially because it turns out that the connection between constitutional language and social function is more intimate than one might expect at first blush. In order to make the main lines of the argument clear, I first want to address some of the basic assumptions of my approach. The first section thus discusses in connection with the image of "two pies," the basic questions of political organization that any society must answer. Thereafter I shall turn to matters more closely related to the eminent domain clause itself, and to the four specific textual issues that the eminent domain clause raises, and how I propose to resolve them.

First Page

3

Volume

41

Publication Date

1986

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