Posted by Jonathan Adler:
Regulatory Takings and the 14th Amendment:
http://volokh.com/archives/archive_2009_02_15-2009_02_21.shtml#1234891702
Tomorrow I will teach [1]Chicago, Burlington & Quincy Railroad Co. v.
Chicago, in which the Supreme Court first held that the Fourteenth
Amendment requires states to pay just compensation when private
property is taken for public use. While sometimes identified as the
first case in which the Supreme Court "incorporated" a provision of
the Bill of Rights against the states, there is no mention of the
Fifth Amendment or the Takings Clause. Rather, Justice Harlan's
opinion for the Court explicitly rests its legal conclusion on the due
process requirement of the Fourteenth Amendment. It is only later that
the Court expressly incorporates the Takings Clause, and further finds
that some regulations -- those that go "too far" in [2]Justice Holmes
immortal words -- may trigger the compensation requirement.
If one assumes that the Court's holding in Chicago, Burlington &
Quincy Railroad Co. v. Chicago is correct, the next question is
whether the substantive protection afforded property rights under the
Fourteenth Amendment is the same as that under the Fifth Amendment.
That is, if the due process clause (or, perhaps, the Privileges or
Immunities Clause) bars the taking of private property for public use
without just compensation, is the meaning of this prohibition the
same? Should we assume that the understanding of this prohibition in
1791 was the same as in 1868? If, for instance, we don't believe that
the Fifth Amendment's takings clause required compensation for
regulatory takings, does this preclude the recognition of such a
requirement under the Fourteenth?
USD law professor Michael Rappaport has an interesting new paper on
SSRN exploring some of these questions, [3]"Originalism and Regulatory
Takings: Why the Fifth Amendment May Not Protect Against Regulatory
Takings, But the Fourteenth Amendment May." Here is the abstract:
This article explores the widely disputed issue of whether Takings
Clause protects against regulatory takings, offering a novel and
intermediate solution. Critics of the regulatory takings doctrine
have argued that the original meaning of the Fifth Amendment
Takings Clause does not cover regulatory takings. They have quickly
moved from this claim to the conclusion that the incorporated
Takings Clause under the Fourteenth Amendment also does not cover
regulatory takings.
In this article, I accept the claim that the Fifth Amendment
Takings Clause does not cover regulatory takings, but then explore
the possibility that the incorporated Takings Clause does cover
such takings. Applying Akhil Amar's theory of incorporation, I
argue that there are strong reasons, based on history, structure,
and purpose, to conclude that the Takings Clause had a different
meaning under the Fourteenth Amendment. Amar argues that the Bill
of Rights was dominated by republican ideas, but that the
Fourteenth Amendment was founded on more liberal notions intended
to protect individual rights. This would suggest that a broad
reading of the Takings Clause would further the principles
underlying the Fourteenth Amendment.
Moreover, that some state courts had come to apply takings
principles to regulatory and other nonphysical takings in the
period between the enactment of the Bill of Rights and the
Fourteenth Amendment provides additional support for the
possibility that the Fourteenth Amendment enactors would have
understood it to apply to regulatory takings. While the paper does
not attempt to prove that the Fourteenth Amendment Takings Clause
applies to regulatory takings, leaving that task to others, it
argues that critics of regulatory takings doctrine should no longer
simply assume that the Constitution's original meaning does not
apply to state regulatory takings.
I should note that one could make a similar argument with regard to
the "public use requirement" of the Takings Clause. That is, even if
one does not believe that the Fifth Amendment Takings Clause imposed
an independent restriction on the purposes for which property was
taken by the federal government (because, among other things, such
limitations were imposed by the enumeration of limited federal
powers), there may be reasons to believe that the Fourteenth Amendment
does.
References
1.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=166&invol=226
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=260&invol=393
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1327462
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