Power to the People: The Takings Clause, Hart's Rule of Recognition, and Populist Law-Making

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Though H.L.A. Hart's The Concept of Law has played a central role in jurisprudential debate since its publication in 1961, there has been little interest in using his scheme to analyze the American constitutional system. In recent years, however, scholars have focused on Hart's "rule of recognition," which defines a legal system's basic standard of legal validity, to address two interconnected issues: whether Hart's scheme is useful in analyzing the American constitutional democracy and whether this analytical endeavor provides support for Hart's conceptual framework. This Article uses the American experience with the Takings Clause of the Fifth Amendment to address both issues. This context provides a concrete framework for analyzing abstract jurisprudential concepts that is especially useful because it involves a classic jurisprudential challenge: How is it possible to use legal protections of property rights to control government, which is empowered not only to establish and coercively enforce property rights but also to impose limits on those rights? This experience also illustrates an area where citizens have used their legal rights to secure greater protection for a constitutional right through the political process than that granted by the Supreme Court. As to the first question, the Article concludes that Hart's analysis of the nature and types of rules helps our understanding of the way takings law has developed. In particular, it illustrates that, largely because of Hart's identification of the limits on human ability to foresee the future and to communicate standards, the Constitution must be interpreted and adapted to constantly changing circumstances as it is applied to property rights. As a result of this process, officials have created an unwritten constitution that is based on and supplements the written Constitution. On the second question, the Article concludes that Hart's method of focusing on the elements shared by all legal systems is questionable and that, in two respects, his theory fails to achieve his goal of providing a morally neutral descriptive model that applies to all legal systems: (1) His view that official discretion is constrained by an internal sense of obligation to respect certain rule-based duties renders the model inapplicable not only to totalitarian legal systems but also to systems, like the United States, which use direct citizen participation in adopting and applying rules; and (2) his use of the distinction between citizens and officials does not apply to systems that grant citizens direct decision-making powers.

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