Historic Preservation. Zoning, Originalism, Stare Decisis, Bruen, History, Text, Takings
Constitutional Law | Law
In Penn Central Transportation Co. v. City of New York, the Supreme Court authorized the practice of historic preservation. Ruling that when a city designates a building as "historic" and therefore restricting its development, it is not a "taking" of private property that requires just compensation under the Fifth Amendment. Since that time, historic preservation has proliferated in America's cities. But it's time for another look. Since Penn Central was decided, the facts and law of property regulation in the United States have changed. And the decision, which was wrong from an originalist perspective when it was decided, has wreaked havoc on America's housing supply and economy. Thus, under the Court's stated stare decisis factors, Penn Central is a decision that deserves to be overturned, narrowed, or at least revisited.
Kraz Greinetz, Historic Preservation: Launched From Grand Central Terminal, But Derailing, 18 Duke Journal of Constitutional Law & Public Policy Sidebar 365–404 (2023).