Garnett on "No Taking Without a Touching?" Questions from an Armchair Originalist

'No Taking Without a Touching?' Questions from an Armchair Originalist, is a new paper from Nicole Stelle Garnett, Notre Dame Law School. It is forthcoming in the San Diego Law Review. Here's the abstract:

This paper is an invited contribution to the Bernard Siegan Memorial Conference on Economic Liberties, Property Rights, and the Original Meaning of the Constitution at the University of San Diego School of Law. The paper poses three questions about the historical evidence used to support the dominant academic view that the Fifth Amendment's Takings Clause, as originally understood, extended only to physical appropriations or invasions of private property. First, the paper questions the relevance of state and local regulatory practices to the pre-incorporation understanding of the Takings Clause. Second, the paper expresses concern about the use of state-court cases decided well into the nineteenth century to elucidate the meaning of a late-eighteenth-century legal provision. Finally, the paper asks whether the state decisions frequently cited for the "no taking without a touching" principle might have been answering different questions than the modern "regulatory takings" problem.