The Law of Taking Elsewhere and, One Suspects, in Maine

The debate as to the meaning of the Taking Clause in the Fifth Amendment of the United States Constitution seems unending. This short, almost cryptic constitutional provision, “nor shall private property be taken for public use, without just compensation,” has over the years given rise to both court challenges and philosophic debate aimed at parsing out the meaning and parameters of this language. As the need for regulatory controls (imposed by every level of government) has increased, the number of challenges and the stridency of the debate has also increased. Moreover, these challenges have increasingly found their way to the United States Supreme Court. Originally, this clause was only applied to a physical taking by government, but this obvious and literal meaning of the clause was at an early date deemed to be a too narrow view of the Taking Clause and is today regarded as revisionist in its approach. Over one hundred years ago the United States Supreme Court recognized that police power regulations may also, if too extreme, give rise to a Fifth Amendment taking, a constructive taking, of the regulated property. This Article focuses on regulatory takings—what we know, what we don't know, and what seems likely (in the nation and in Maine) in this area of taking law. It will draw most heavily on recent United States Supreme Court case law, but other federal and state cases, and both federal and state legislation (some proposed, some enacted) aimed at clarifying the Fifth Amendment's mandate will also be examined. The purpose of the Article is to suggest that the Taking Clause is alive and well, that its meaning is not as obscure as some would suggest. In short, a more accurate understanding and acceptance of current taking law by those who would protect us is more likely (than is the rhetoric of the extremes) to preserve regulatory credibility in judicial forums and continued public acceptance of reasonable regulations. Such understanding and acceptance will not end, but is more likely to blunt, the litigation and legislative strategies of the absolutists.