Frank Cross wrote: First, it seems that the relevant property right is that of the parent, not the child. A confiscatory estate tax would not seem to "take" that property, instead it simply prohibits passing the property on at death. The parent would still be free to dispose of his or her property as wished until the time of death but denied the opportunity to pass it on then. For this to be a taking, you would have to hold that the ability to pass your property on at death was an essential part of the bundle of property rights, which would seem difficult to argue if you were entirely free up to that point.
To which I observe that the Supreme Court has essentially held it is a catagorical taking of property for the government to entirely deny someone the ability to devise real estate. See Hodel v. Irving, 481 US 704 (1987); Babbitt v. Youpee, 117 S.Ct. 727 (1997). This holding reflects the Supreme Court's conceptualistic approach to property in which some sticks in property's bundle of rights receive more protection than others because they are "fundamental." The stick of "right to exclude" received categorical protection in the Loretto case (1982); the stick of "economic use" received categorical protection in the Lucas (1992) case. Probably because it (slightly) predates this development, the stick of "commercial sale" did not receive categorical protection in Andrus v. Allard (1979). The Court's categorical protection of the right to devise property involved the government's police power, not its taxing power, which is what this thread is about. Stephen Siegel DePaul University College of Law
