Well, there are plenty of problems like that lying around American constitutional law. Some of them, but not nearly all, attract proposals from legal scholars for solutions drawn more-or-less expressly from moral and political philosophy. The taking question is one that has, and it would be interesting to see whether there are identifiable features of this particular doctrinal hang-up in constitutional law that may have made it a magnet for philosophy-minded legal scholarship. 

Historical accident might always be a part of the answer. In this case, the accident would be a 1967 article on the taking question by Frank Michelman of the Harvard Law School.  Michelman's article contains numerous references to sources in moral and political philosophy. Whether it should be classed as a scholarly application of philosophy to law is nevertheless doubtful. The article is now remembered mainly for its elaboration of a utilitarian approach to the taking question, and while utilitarianism is certainly among the major moral and political theories that philosophers have developed, analyzed, and debated, its use in a law review article would today be regarded as far too commonplace to count as an injection of moral or political philosophy into legal scholarship. (In fact, Michelman's article is today regarded as an early contribution to the literature of law and economics.)

It is true that Michelman's article also talks a good deal about some non-utilitarian contributions to the history of philosophical thought about property, but most of this talk occurs in a survey of "theories of property" that does no more that set the stage for the author's positive utilitarian proposal. Also included is an application to the taking question of the anti-utilitarian theory of "justice as fairness" being developed at that time by Harvard philosopher John Rawls. In Michelman's hands, though, the "fairness" theory of the taking question turned out, somewhat suspiciously, to track the utilitarian theory.

Nevertheless, philosophical trappings do decorate Michelman's essay, in a way that was unusual for the legal scholarship of the time, and it is imaginable that these trappings helped to put into the heads of scholars such as Bruce Ackerman, Richard Epstein, and Margaret Jane Radin, whose works will be described below, the idea of bringing non-utilitarian philosophical theories to bear on the taking problem in a more ambitious way than Michelman in fact did.

Is there any more to it than that? That is what I want now to consider.

1. Constitutional Purpose and Moral Valuation

Perhaps you can already catch a whiff of "philosophical" thinking in the list I constructed of probable or plausible purposes that have been identified for the taking clause in the course of debate over the taking question.  One might well ask: How could it be otherwise? The taking question appears to be a question about how a certain clause of the Constitution is to be construed and applied in the light of its purposes. But the clause does not itself announce what its purpose is. Therefore, any judge deciding about a doubtful or contested application of the clause to a case of regulation or quasi-tort must evidently be making an attribution of purpose to the clause. And to make an attribution of purpose to a constitutional clause may very well be tantamount to advancing a claim about moral value. That is because one obvious sort of reason for attributing one or another purpose to a constitutional clause is to get the clause to do the right thing -- to get it to do what a clause like that ought to do in a morally commendable system of government. But that is, precisely, a question of moral value. It looks like we have an open invitation to someone to come along and supply the relevant, decisive, philosophically developed moral theory.

I do not mean to say that purpose is the only possible key to the meaning of the words we find in this (or any) clause of the Constitution. A judge might rather simply ask herself what the words of the clause mean in a straightforward sense. She might go about this by reflecting on what it is that most people -- most people, not most philosophers -- ordinarily envision when they speak or think of one person "taking property" from another, and whether most people would intuitively see the case before her as a case of that. 

But here we run into something special, although certainly not unique, about the history of judicial dealings with the taking clause. Judges have in fact rejected the ordinary-language approach to taking-clause interpretation. They have done so for the reason we've already seen expressed by Justices Holmes and Scalia. Both those Justices found themselves imagining something like this: a government regulation forbidding people to drain their farms whenever doing so would destroy an endangered-species habitat -- which, as applied to your farm (after an endangered turtle species turns up there), has the effect of leaving you with title to the farm but forbidden by the law to grow anything on it or use it for much of anything else. In the Holmes-Scalia view, the fact (if it is one) that most people wouldn't ordinarily say that the government in such a case has "taken your farm" cannot, in all reason, be allowed to be decisive against applying the taking clause to the case. As Holmes and Scalia see it, the taking clause had better, in all reason, have some possible application to cases of this sort. (In saying so, are they not, quite obviously, bringing moral values to bear on constitutional interpretation?)

In his book, Private Property and the Constitution (New Haven: Yale University Press, 1974), Bruce Ackerman summons philosophy to shed light on the choice judges face between an ordinary language approach (the approach rejected by Holmes and Scalia, which Ackerman calls "ordinary adjudication") and a purposivist approach (the approach favored by Holmes and Scalia, which Ackerman calls "scientific adjudication") to the work of interpreting -- giving an applied meaning to -- the taking clause. In Ackerman's view, the importance of this choice goes beyond the effects it has on case outcomes. The choice, he believes, is morally crucial to the justification of our system of judicially supervised constitutional government, and furthermore is deplorably ignored by legal scholarship. It is also, he believes, a choice that only philosophy can illuminate, and it is this point that Ackerman had in mind when he wrote that "it is only after resolving certain philosophical issues that one can make sense of the constitutional question, let alone pretend to expound a correct constitutional answer." Readers interested in this important issue should consult Ackerman's book. We do not further pursue it here.^[*]

All that matters for us, right now, is that Holmes and Scalia did in fact reject an ordinary-language approach to taking clause interpretation in favor of a purposivist or "scientific" one, and that the purposivist approach has in fact proved irresistible to judges and lawyers trying to ascertain the correct application of the taking clause to cases of regulation and quasi-tort. Perhaps it need not prove irresistible for all matters of constitutional interpretation, but it has for this one. And that, I am suggesting, is a fact about the taking clause that has helped open the door to moral and political philosophizing in the legal scholarship about it.

2. Moral Valuation and the Role of the Judge: Legal Positivism 

But can't we see a pretty obvious way to slam the door shut? No doubt it is true that to engage in purposive interpretation of the taking clause is to attribute purposes to it, and that attributions of purpose to constitutional clauses depend on judgments about moral value. Does it follow that judges using purposive interpretation must be the ones who make the related judgments of value, or that they have any use for moral philosophy in the process? That doesn't follow at all. That the judge must use a moral value judgment in his work doesn't mean that the judge has to be the one who makes the moral value judgment he uses. To the contrary, the needed judgments of moral value might be supplied to the judge, ready-made, by existing legal authority that he is duty bound to follow -- which seemingly would leave moral philosophy out of the picture.

But then the question becomes: Who or what stands, in American constitutional-legal understanding, as the authority from whom or which the Supreme Court takes moral value judgments ready-made? Where shall the Court look to find the ready-made moral value judgments it needs? In standard American constitutional-legal thought, the answers are found in a general outlook on legal decisionmaking that is known as legal positivism. Here, very crudely stated, is the gist of the legal positivist outlook:

(1) In any mature legal order there is always some identifiable "sovereign" body, or some sovereign combination of bodies acting in conjunction with each other by established procedures, that is recognized by society as having the ultimate, legitimate authority to make or decide the law;

(2) every official in the legal order, judges included, is always either (a) acting as a part of the sovereignty or else is (b) acting under the authorization and instruction of the sovereignty; and

(3) Officials in category (b) can always find out what they are supposed to do, in the cases that come before them for decision or action, by consulting the instructions -- the laws -- that emanate from the sovereignty. (The instruction may be very broadly framed, as in "use your best judgment to fulfill the public interest.")

Where, then, is the "sovereignty" located in the legal order of the United States, according to the established and accepted political practice of this country, and how does the Supreme Court stand in relation to this "sovereignty"? Among American constitutional and legal theorists, those are somewhat contested questions. According to some theorists, the Supreme Court, in some of its adjudications, acts in a sovereign capacity as an ultimate, legitimate lawgiver, making basic moral value judgments that the Constitution cannot be said to dictate but which will nevertheless bind the country thereafter. If that view is accepted, and if resolution of the taking question is one of the matters that falls within the Supreme Court's domain of sovereign decision, and if the Court is justified in committing itself to a purposivist approach to the question, it follows that the Court's responsibilities in this area do indeed include the making of the moral value judgments that an attribution of purpose to the taking clause requires.

But whatever some theorists may say, the idea that the Supreme Court has any share of sovereignty in this country is not a part of mainstream, ordinary, American political and legal culture. In mainstream American thought, sovereignty in the United States resides in the People who legislate the Constitution. The Supreme Court receives its power to oversee the constitutional legality of government actions from the sovereign People whose legal enactment -- the Constitution -- the Court in such cases interprets and applies. It follows that, if the Court needs a moral value judgment in order to interpret the taking clause in the purposivist manner it thinks is required, the Court is bound to obtain the requisite moral value judgment not from speculative reason but from historical research. It must look, for the value judgment it needs, to the acts and understandings of those who, in the sovereign People's name, wrote the taking clause into the Constitution, or to the encompassing political culture that presumably informed their acts.

3. The shortfall of history

It has, however, appeared to many that historical inquiries are bound to be inconclusive regarding the moral value judgments that inform the taking clause. Most, if not all, of the ten candidate purposes I listed would surely have found favor in the emergently liberal-individualist political culture within which the authors of the Fifth Amendment are believed to have been operating by most historians today; it seems extremely doubtful that the general political culture of the framers' day contained anything like a rank-ordering among these purposes; and even if it did, there appears to be little chance that today's historians could come to anything approaching a professional consensus about what the rank-ordering was.

It is true that some constitutional lawyers claim a high level of confidence that they have identified a particular, salient, moral value judgment capable of picking out one purpose (from among my ten candidates) as the purpose of the taking clause, and moreover a purpose that's readily convertible into a reasonably decisive doctrinal test for deciding whether a particular instance of regulation or quasi-tort deserves classification as a constitutionally compensable "taking."  ^[*] However, no such claim has yet gained, or appears likely to gain, a wide following as established historical truth.

Alternatively, it might be possible to attribute to some one of the constitutional authors -- James Madison, for example, who drafted the taking clause and proposed it to Congress -- a moral value judgment that could provide a basis for a more-or-less decisive answer to the taking question. (There is, in fact, research suggesting that Madison was mainly motivated by the first on my list of candidate purposes, that of maintaining a climate of respect for property rights by providing for a full public recompense to visibly expropriated owners.) However, no individual -- not even Madison -- is tantamount to "the People" or "the framers and ratifiers of the taking clause." The theory of popular sovereignty on which Americans usually base the Constitution's status as supreme legal authority cannot hope to explain how James Madison's particular view of purpose should take any precedence, as legal authority, over other views that, so far as anyone now can honestly tell, may have been equally congenial to the prevailing political culture of the time.

4. From moral values to moral theories

We have established that the taking question, for better or for worse, is treated by judges as one about how a certain American constitutional mandate is to be applied in the light not of ordinary language considerations but rather of the purposes -- and hence of the moral value judgments -- to be attributed to that mandate. We have said that historical investigations cannot, in this instance, supply ready-made the moral value judgments required for the work. But then look at the situation we are in. We have identified ten distinct purposes that could plausibly stand behind the clause. The odds would seem to be stacked heavily against the possibility that each of the identified purposes would point toward the same answer to the taking question -- would point toward the same decision in every case of dispute over whether a particular instance of governmental regulation or quasi-tort deserves to be treated as a compensable "taking."   Any proposed answer, therefore, must contain within it, either explicitly or implicitly, a selection of one purpose (or, conceivably, two or three), from among the ten plausibly attributable purposes, as the dominant purpose behind the clause. At the very least, an answer to the taking question must contain something like a rank-ordering of the candidate purposes, in order to take care of cases in which various of the purposes point toward different decisions about whether the particular regulation or quasi-tort in question should be treated as a "taking." But how could you rank-order the purposes without reference (even if implicit) to a moral theory?

5. A summing-up

I have now described a set of conditions that invite express engagements with moral and political philosophy into contemporary lawyers debates over the taking question -- the question of the standard or method to be used by judges in deciding whether particular instances of governmental regulation or quasi-tort deserve to be treated as constitutionally compensable takings of property. These conditions boil down to (1) a judicial choice in favor of a purposivist as opposed to an ordinary-language approach to the interpretation and application of the taking clause; (2) a sense that various plausible purposes for the taking clause, all of them fairly attributable to the framers, will in many cases point toward different decisions about whether the particular regulation or quasi-tort in question should be treated as a "taking" -- so that an answer to the taking question requires a rank-ordering among the candidate purposes; (3) an admission that the constitutional framers' general or vernacular political culture in all probability did not contain such a rank-ordering of purposes (any more than our general or vernacular political culture contains such a thing); (4) a perception that a defense of any particular rank-ordering of candidate purposes requires reference (even if implicit) to a full-scale moral theory, a theory of the good and of the right; and (5) an awareness that formulating and defending, clarifying and criticizing such theories is a chief occupation of professional moral and related political philosophy.

Are you persuaded that moral and political philosophy have, in these conditions and on these grounds, a place in legal scholarship?

I don't think you are going to reject, as normatively wrongheaded or as out of keeping with the general professions and orientations of American constitutionalism, any of the items on my list of ten candidate purposes for the taking clause. I do think you will be able to figure out, for each one of the purposes, how it may sometimes be well served by a requirement of compensation for loss due to governmental regulations or quasi-torts, and I do think you will see how various pairs of items on the list could well be felt to point toward different answers to the taking question in some easily imaginable cases. How, then, do you suppose that any judge is going to shape up this jumble of somewhat cross-cutting, respectable candidate purposes into a unified normative (or "moral") theory of the clause that can give substantial and consistent guidance to judicial applications of it?

As you cast your eye over the list of purposes, you may start to notice what strike you as structural or hierarchical relations among them. Some of the items may seem to specify "lesser included" cases that are covered by, and fall under, generalizations named by other items -- and yet you may feel hesitant, for reasons you can't quite explain, to drop the "lesser included" items from the list. Some of the items may seem to group themselves naturally with others -- in the sense, perhaps, that you feel that all the items in the group will almost always point to the same answer in a given case -- and yet you may not be able to explain clearly what trait is holding the items together as a group and is lacking in the items that you feel "don't belong." Some of the items may strike you as concerned with "the good" while others strike you as concerned with "the right" -- or some may strike you as concerned with overall social prosperity while others strike you as concerned with justice to individuals -- and yet you may be baffled about how to stick these two kinds of items together in a unified theory, and you might crave some help in figuring out what sorts of options there are.

There are intelligent and thoughtful people, trained for the purpose, who spend substantial parts of their professional lives learning about and working on questions of the very kinds that may be worrying or confusing you. They are typically found in university departments of philosophy and politics, where they work in fields called moral or political theory or philosophy. If you had the task of coming up with a normative theory of the taking clause, serviceable for judicial use in deciding on the constitutional compensability, as "takings," of specific instances of government regulation and quasi-tort -- and you knew you couldn't find the theory you need in ready-made form in your country's legal history -- you might think it would make sense to consult these people, if not in person then by reading and reflecting on what they write.

If you, as an overworked judge, lacked the time to do the consulting yourself, perhaps you would welcome an intermediary service that legal scholars could perform. Grasping the "taking problem" from the standpoint of the trained and knowledgeable lawyer, the legal scholars might undertake to do the consultations with the moral theorists, with a view to reporting back what they had learned, perhaps supplemented with what they were able to add by reason of their specialized legal understandings, in a form suitable for the consideration of judges. The legal scholars would then, from the judge's standpoint, be providing a kind of vicarious consultation.

As a judge, you wouldn't have to set, as your objective for the consultation, that it end by supplying you with the uncontroversially "right" normative theory of the taking clause. You might anticipate that there is no such thing to be found, and so be prepared to exercise your own responsibility for adopting a theory. Yet you would want the theory you adopt to be free of contradiction and obfuscation, reasonably transparent, one that you know how to explain as being actually consonant with an ordering of values that you know how to articulate, and also know how to defend as suitable to the issues at hand -- and those objectives might suffice to make you think the consultation could be worthwhile.

Whether or not you find them ultimately persuasive, beliefs of the kinds I have just sketched plainly supply a large part of the motivation for express engagements by legal scholars with moral and political philosophy. Especially if you do find them persuasive, you should be aware that beliefs of this kind are very controversial within the legal scholarly community just now, even if they are widely held enough to help explain what it is that legal scholars are often trying to do with moral and political philosophy.

The controversy rages mainly over whether a judge has to have conscious possession of an express, philosophically developed and elaborated theory of the good and of the right in order to make the moral value judgments that may required for attributions of purpose to constitutional clauses. If you wonder how anyone could doubt it, please have a look at our discussion of "Anti-Theory." It seems that a considerable group of legal theorists maintain that judicial professionalism, pragmatism, and tacit understanding of society's needs, wants, and expectations, along with judicious use of analogical reasoning from precedents, allows judges to make the requisite value judgments without reference at any point to philosophically articulated theories of the good or the right.

These anti-theorist legal theorists advance an important and respectable claim about how judicial decisionmaking does or ought to work. We don't have to resolve its correctness here. For now, it is enough to say that doubts about it are sufficiently widespread among American lawyers and legal theorists to make it understandable why lawyers' debates about the taking question would have become infected, if that is the word, by express moral and political philosophy.