Document Type

Article

Publication Title

William & Mary Bill of Rights Journal

Abstract

It is my very great pleasure to write a short response to these presentations given at the conference held in connection with the decision of the faculty of the William & Mary School of Law to designate me as the recipient of the second Brigham-Kanner prize. I am especially grateful that the prize was awarded for my book Takings, which seems after twenty years to have weathered at least some of the scathing criticisms sent in its direction on the occasion of its publication. Before commenting briefly on the three papers in this symposium, let me express my continued puzzlement as to why the book has attracted such fierce criticism. The obvious reason is that my extended analysis of the Takings Clause ended with the "modest" conclusion that the vast redistributive programs of the New Deal were in fact unconstitutional if the Takings Clause was given its proper interpretation, one that properly combined its specific language with its larger intellectual structure. Everyone knows that the clause itself says, "[N]or shall private property be taken for public use, without just compensation." As Eric Claeys points out, an aggressive reading of this clause cannot be blithely dismissed as suffering from the oxymoronic features of substantive due process. Clearly, the text of the clause contains no internal contradiction. The key interpretive question asks what weight should be given to each of its constituent terms.

First Page

407

Volume

15

Publication Date

2006

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