The Federalist Dimension of Regulatory Takings Jurisprudence.

The article reports that the property protected by the Takings Clause is defined not by a single sovereign, but by the legislative enactments and judicial pronouncements of fifty separate states of the U.S. As a result, federalism concerns-underappreciated in the takings literature-do and should play an important role in shaping the Court's takings doctrine. In particular, these concerns make it inappropriate for the Court to use the Takings Clause as a vehicle for articulating a comprehensive theory of the limits on government power to regulate land. The Supreme Court cannot and does not provide the primary protection against overly burdensome land use regulations. Whenever the Supreme Court provides a federal constitutional standard against which state acts must be measured, it must inevitably leave application of that standard to other decision-makers. The sheer volume of enactments prevents the Court from taking the leading role in enforcing constitutional standards. As a result, state courts, lower federal courts, legislatures, and administrative agencies must play a role in fleshing out the Court's pronouncements. Takings cases, however, provide a challenge different in kind from those raised by other constitutional provisions. For example, the First Amendment and the Equal Protection Clause provide federal constitutional standards against which state and local enactments are to be measured.