legal theory: philosophy

Takings: What is the taking question?


The "taking question" is concerned with the legal meaning and application of certain texts in the U.S. Constitution.

The Fifth Amendment, adopted in 1791, includes a declaration that "private property" is not to be "taken for public use, without just compensation."

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This "taking clause"originally applied only to the federal government and not to the states. However, the Supreme Court long ago decided that section 1 of the Fourteenth Amendment (1868), which prohibits any state from "depriv[ing] any person of property without due process of law," has (in effect) made the Fifth Amendment taking clause applicable to state and local governments. In what follows, I use the term "taking clause" to refer not only to the express clause in the Fifth Amendment but also to its unwritten Fourteenth Amendment ghost.

The clause commands that governments pay a court-determined just compensation to anyone from whom they take private property. But what does it mean, legally speaking, for a government to "take property?" According to Professor Bruce Ackerman, a philosophically inclined law professor, "it is only after resolving certain philosophical issues that one can make sense of [such a] constitutional question, let alone pretend to expound a correct constitutional answer." "Analysts," Ackerman claims, "must become philosophers if they wish to remain lawyers." (Bruce A. Ackerman, Private Property and the Constitution, New Haven: Yale University Press, 1974, at 5.) What is he talking about?

Let us repeat the question that Ackerman says we can't answer without philosophy: Legally speaking, what does it mean for a government to "take property" and thereby acquire a constitutional duty to pay just compensation? There is one easy and obvious case. It is that of a government using its power of eminent domain to accomplish what Justice Antonin Scalia has termed a "direct appropriation" -- a formal transfer of ownership of some asset from a private person or firm to the government, effected at the demand of the government and without regard to the desires of the private person or firm. In all such cases, a "taking" of that asset has undoubtedly occurred, for which a payment of just compensation is constitutionally required. Courts have also found it easy to conclude that such a constitutionally compensable "taking" occurs when a government, without bothering with the formality of a direct appropriation, effects what Justice Scalia calls the "functional equivalent" by its actual conduct on the ground -- as by taking over full possession of a privately owned parcel of land, excluding the private owner, and, in general, treating the land to all intents and purposes just as if it owned it.

Now, there are many other governmental actions, falling well within the general powers of governments to act in the public interest, which significantly reduce the values of assets to their private owners, but without in the least suggesting that ownership of the affected assets has passed to the government. Cases of this kind generally fall into one or the other of two major categories, which we can call regulation and quasi-tort.

In a case of regulation, the government uses its legislative power -- its power of enacting new laws to revise the bounds of lawfully permitted conduct -- in a way that reduces the values of assets to their owners by imposing a new restriction on the uses to which those assets lawfully may be devoted or the manner in which they lawfully may be used. Examples are zoning laws, environmental laws, rent control laws, and workplace safety laws.

In a case of quasi-tort, the government acts directly on the physical environment in some way that results, through some chain of physical and social causation, in an impairment of the values of privately held assets to their owners. For example, the government dams a river with the predictable consequence of periodically and partially flooding some upstream pastures, or it constructs a new thruway with the predictable consequence of permanently drying up the flow of traffic that used to provide a good business for the restaurants in the nearby side streets, or it flies its military aircraft at such a low altitude over certain land as to make that land unuseable for any productive purpose. (I call these cases of quasi-tort because they are sorts of cases in which the injured owner might have considered lodging a common-law tort action against the person whose actions cause the disturbance, but for the preclusive effect of legal doctrines of sovereign immunity.

Historical investigation and normative reflection have revealed a number of purposes that plausibly may stand behind the constitutional restriction against uncompensated governmental takings of private property. Among these are:

I have just listed ten probable or plausible purposes for the taking clause, and it seems that many if not all of the ten may be seriously compromised by government actions whose formal character is not that of a transfer of title but rather is that of a regulation or a quasi-tort. It is very likely true, as Justice Scalia conceded in the leading case of Lucas v. South Carolina Coastal Commission (1990), that the authors of the taking clause had no thought that the clause would ever be applied to cases of "mere" regulation or quasi-tort. Considerations of purpose have nevertheless forced American lawyers and judges to the now well-established view that the taking clause is applicable to some -- if by no means all -- cases of regulation and of quasi-tort. As Justice Scalia has explained,

Prior to Justice Holmes' exposition in Pennsylvania Coal Co. v. Mahon,260 U.S. 393 (1922), it was generally thought that the Takings Clause reached only a "direct appropriation" of property, or the functional equivalent of a "practical ouster of [the owner's] possession." Justice Holmes recognized in Mahon, however, that if the protection against physical appropriations of private property was to be meaningfully enforced, the government's power to redefine the range of interests included in the ownership of property was necessarily constrained by constitutional limits. If, instead, the uses of private property were subject to unbridled, uncompensated qualification under the police power, "the natural tendency of human nature [would be] to extend the qualification more and more until at last private property disappeared." These considerations gave birth in that case to the oft-cited maxim that, "while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking."

It is easy enough to conclude -- as Justice Holmes, seconded by Justice Scalia, evidently did -- that behind the taking clause stands at least one purpose that it would be intolerably easy for governments to evade or frustrate if the clause were not given application to some cases of regulation and quasi-tort. It is quite another and more difficult task, however, to specify a good method or standard -- roughly speaking, a good rule of law -- for judges to use when called on to decide whether a given, particular instance of regulation or quasi-tort indeed is -- exceptionally -- to be treated as a "taking" for which a payment of compensation is constitutionally required. (You should consider whether, and if so why, you feel that the formula "regulation goes too far" leaves something to be desired as a test for judges to use in deciding such controversies.) It is this matter of developing a legal "doctrine"  for deciding claims of unconstitutional taking by regulation or quasi-tort that I mean by the "taking question."

It is a question that remains unresolved after seventy-five years of continuing debate, counting from the Mahon decision. Consider, for example, Justice Brennan's well-known summation in his opinion for the Court in Penn Central Transportation Company v. New York (1978):

While this Court has recognized that the Fifth Amendment's guarantee . . . [is] designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole, this Court, quite simply, has been unable to develop any "set formula" for determining when "justice and fairness" require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons. Indeed, we have frequently observed that whether a particular restriction will be rendered invalid by the government's failure to pay for any losses proximately caused by it depends largely "upon the particular circumstances [in that] case." [*]

The "taking question," then, is one about how to formulate a legal doctrine for use by judges in deciding a troublesome class of disputes that arise under a certain clause of the Constitution, the taking clause. It is unfinished business for the Supreme Court. What's wanted, apparently, and hasn't yet been found, is a doctrine of takings, or a legal "test" for a taking of property, that satisfies two requirements: (1) it fits reasonably well some supposed purpose or purposes of the taking clause, and (2) judges can apply it to the cases that come to court in a more-or-less decisive and consistent way, so that litigants receive justice according to law and are not left to the mercies of sheer judicial discretion.