When "Takings" Happen to Good People


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An Occasional Paper Volume 14 When "Takings" Happen to Good People: The Fifth Amendment Takings Clause and the Issue of Distributional Justice Jeffrey Gaba


  • When Takings Happen to Good People: The Fifth Amendment Takings Clause and the Issue of Distributional Justice

    Jeffrey GabaAn Occasional PaperVolume 14

  • When Takings Happen to Good People:The Fifth Amendment Takings Clause and the

    Issue of Distributive JusticeAlthough the era of big government may be over, we still live in

    a world in which peoples ability to use their property is directly, andoften substantially, limited by government regulation. Some of themore controversial examples arise from environmental statutes.Under the federal Clean Water Act, for example, landowners may belimited in their ability to develop land that consists of a very broadlydefined class of wetlands. Under the federal Endangered SpeciesAct, landowners may be prevented from developing their land in waysthat would harm endangered species. In both cases, a select group oflandowners is being regulated in order to confer what most wouldagree are important benefits to the public at large.

    This situation raises one of the central concerns of moralphilosophyan issue that has captured the attention of philosophersfrom Aristotle to Star Treks Mr. Spockwhen do the needs of themany outweigh the needs of the few? In Aristotles terms, this is theissue of distributive justice, or the ethical analysis of situations inwhich it may be appropriate to impose disproportionate burdens on asmall group to benefit a larger group.

    Although an issue of philosophy to academics, the issue is seen bylawyers as a question of construction of the Fifth Amendment of theUnited States Constitution. The Fifth Amendment provides, inrelevant part, that:

    No person shall be deprived of life, liberty, orproperty without due process of law; nor shall privateproperty be taken for public use without justcompensation.

    The first clause is the due process clause of the Fifth Amendment;the second clause is the takings clause. It is this Takings Clause thatmany view as the primary limitation on the governments ability torestrict the use of private property without providing compensation tothe affected landowner.

    It is not surprising that the Takings Clause is part of the FifthAmendment. The Fifth Amendment is one of the Bill of Rights; these

  • are the first ten amendments to the Constitution that were added toplace limits on the governments ability to restrict importantindividual liberties. Thus, the Takings Clause is seen by many,together with freedom of religion, freedom of speech, and protectionsfrom self-incrimination, as a statement of a basic liberty. Indeed, theTakings Clause can be seen as being of particular significance as theonly part of the Bill of Rights that explicitly deals with thegovernments ability to affect citizens use of their property.

    Despite the potential political and ethical importance of theTakings Clause, it historically has been of limited significance incontrolling regulatory limits on the use of private property. Few suchgovernment regulations have been held to be takings, and theSupreme Court has been unable to develop any test that willsatisfactorily distinguish between a legitimate exercise of governmentregulatory power and an illegitimate taking. The Supreme Courtstakings jurisprudence is recognized by all to be (as it is most politelyphrased) a muddle.

    Perhaps the most important reason for this muddle is the failureof the Court to articulate a coherent conceptual basis for the TakingsClause. The Courts opinions reflect a variety of themes that havebeen advanced to describe the basis of the Takings Clause. One suchtheme is that the Takings Clause, in fact, embodies a principle ofdistributive justice. In other words, the Takings Clause limits thegovernments ability to impose a regulation that places too great aburden on an individual in order to benefit the public at large.

    Although the Supreme Court has itself described the TakingsClause as reflecting a concern for distributive justice, it has neverexplained the historical or legal basis for this view. If, however, weare to take this view seriously, it is important to be able to articulate alegitimate basis for construing the Takings Clause in terms ofdistributive justice. Furthermore, the Court has never directlyaddressed the implications of this view. First, are there principles ofdistributive justice that can actually provide better guides to decision-making than are currently employed by the Supreme Court? Second,how do we view the legitimacy of accepting or rejecting agovernment regulation based on views of its fairness? In otherwords, can the public be expected to accept (or should they accept) a

    When TakingsHappen to Good People


  • government regulatory burden because they are told it is fair? Third,if fairness is the appropriate criterion, should unelected judges besubstituting their views of fairness for those of an elected legislature?These are some of the difficult questions that arise from taking theconception of distributive justice seriously.

    I. Searching for the Meaning of the Takings Clause: TheHistoric Vacuum and the Supreme Courts Power Grab

    Although, as discussed above, many see the Takings Clause as acentral statement of fundamental liberty, the Takings Clause has twodirty little secrets. First, there is virtually no historical evidence thatthe Takings Clause was intended to be an important limit on thegovernments power to regulate land use. Second, it was not until1922 that the Supreme Court, in what was an extraordinary act ofjudicial activism, claimed that the Takings Clause acted to limitgovernment regulatory authority.

    A. The Historical Basis of the Takings Clause

    Although there were ideas current in the seventeenth andeighteenth centuries (and contemporaneous land use regulation bystates) that might inform an interpretation of the Takings Clause, thereis almost no direct evidence of the intent of those who actuallyproposed and adopted the Takings Clause. The Bill of Rights wasadopted by Congress in 1789 and subsequently ratified by the states.1Many of the provisions in the Bill of Rights arose from petitionssubmitted by the states, but this was not the case with the TakingsClause. The Takings Clause stands alone as the only part of the Bill ofRights that was not requested by a single state.

    Madisons first draft of what became the Takings Clause stated thata person could not be obligated to relinquish his property, where itmay be necessary for public use, without just compensation. Thisdraft was later revised, without explanation, into its current version bya committee of the House of Representatives. In the reported debateon the proposed Bill of Rights in the House and Senate, there is noreference to the Takings Clause. Certainly, the Takings Clause did notreflect an eighteenth century view that the government could notregulate land without providing compensation; scholars have pointedto numerous practices of the states at the time of adoption of the Bill

    When TakingsHappen to Good People


  • of Rights that involved substantial government regulation of land usewithout compensation.

    In short, there is no contemporaneous evidence that the people whodrafted or adopted the Takings Clause cast the provision as a centralprotection of government regulation of private property. This, ofcourse, does not mean that the Takings Clause cannot fill that role; itdoes, however, raise real questions as to whether the original intentof its drafters supports that view.

    B. Holmes, Pennsylvania Coal, and a Judicial Power Grab

    The Takings Clause was the subject of very little attention until thepivotal Supreme Court case of Pennsylvania Coal v. Mahon in 1922.2Pennsylvania Coal involved a challenge by coal companies to aPennsylvania statute that required coal companies engaged insubsurface mining to leave pillars of coal in place to support thesurface from subsidence. Justice Holmes, in a short but seminalopinion, held that the statute violated the Takings Clause. TheSupreme Court, for the first time, announced the crucial propositionthat a regulation may violate the Takings Clause even if it does noteffect a physical appropriation of property. As Holmes stated: Thegeneral rule at least is, that while property may be regulated to acertain extent, if regulation goes too far it will be recognized as ataking.3

    Holmes sketched out a variety of factors that he viewed as relevantto determining how far is too far for purposes of determiningwhether a regulation constitutes a taking of private property. I willdiscuss some of those below, but the crucial first step was theequation of regulation with a taking.

    To be sure, there is an obvious logic to the proposition.4 Beingprecluded from making use of your property may have the same effectas having title actually taken by the government. But besides theobvious, on what did Holmes rely for this groundbreakingproposition? The answer isnothing. Holmes cites no support for thisposition other than the self-evident logic. Whatever its obviouslogic and appeal, the expansion of the Takings Clause to coverregulatory acts by the government was a tremendous shift from theCourts past treatment of the Takings Clause.5 It was, and is, an

    When TakingsHappen to Good People


  • extraordinary assertion of a courts authority to invalidate otherwisevalidly adopted government regulation based on the courts view ofwhether the regulation goes too far. Few opinions of the SupremeCourt have resulted in so great a usurpation of authority by thejudiciary with so little support.

    II. Searching for the Current Meaning of the Takings Clause

    There may be few contemporaneous clues to the original intent ofits drafters, and Pennsylvania Coal may rest on an unsupportedfoundation, but the fact remains that some meaning must be appliedto