Taking of Property (Update 1)

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Recent historical scholarship indicates that the taking clause was something of an innovation. Only two of the state constitutions adopted between 1776 and 1780 required the government to pay compensation when private property was taken for a public use. The lack of constitutional protection for property rights was consistent with the republican ethos of the period. benjamin franklin, for example, once said that "Private Property … is a Creature of Society, and is subject to the Calls of that Society, whenever its Necessities shall require it, even to its last Farthing; its contributions therefore to the public Exigencies are … to be considered … the Return of an obligation previously received, or the Payment of a just Debt." The taking clause seems to represent a victory of Lockean liberalism over this earlier republican philosophy.

The Supreme Court has recently used the taking clause to strike down a variety of government regulations. In one case, the federal government claimed that the public had the right to use a marina that a private developer had connected with a public waterway. The Court held that giving the public access to the marina would be an unconstitutional taking of the developer's property. In another case, Congress was concerned because certain lands belonging to American Indians had so many owners that managing the lands had become impractical. As a way of consolidating landholdings, a federal statute mandated that some of the tiniest interests would revert to the tribe on the owners' deaths. This, too, was an unconstitutional taking. The Court also found a taking when New York required landlords to give their tenants access to cable television. The reason was that the cable box would "take" some of the space on the building's roof.

A 1987 case, Nollan v. California Coastal Commission, exemplifies the Court's revived interest in protecting property rights. The case involved a couple who wanted to build a larger beach house. As a condition for receiving a permit, the California Coastal Commission required them to allow the public to walk along the beach. The majority opinion was written by Justice antonin scalia, who had quickly emerged as the strongest guardian of property rights on the rehnquist court. Scalia was willing to concede, at least for the purposes of argument, that California could have banned the construction entirely as a means of preserving the public's right to see the ocean from the street. Alternatively, he conceded, the Nollans could have been required to allow the public to walk from the street around to the back of their house. But because the government had chosen to give the public direct access laterally along the beach, rather than from the street, Justice Scalia held the permit condition unconstitutional.

The Court's rationale in Nollan was that lateral access was not closely enough related to the government's right to protect the view of the ocean. Justice Scalia seemed suspicious of the government's motives in imposing the permit condition, at one point referring to similar permit conditions as a form of "extortion."

In contrast to Nollan, another 1987 case rather surprisingly failed to find a taking. Keystone Bituminous Coal Association v. DeBenedictus was a replay of Pennsylvania Coal Co. v. Mahon (1922), the classic decision of Justice oliver wendell holmes, jr. holmes had struck down a pennsylvania statute that required underground coal mines to maintain adequate support for surface structures. theDeBenedictus Court, however, found a similar but more recently enacted Pennsylvania statute to be constitutional. The Court distinguished Mahon on the ground that the newer statute had a broader public purpose. No taking was found, because the statute required mining companies to leave only a small fraction of their coal in the ground.

It is often difficult to predict whether a given government regulation will be found to be a taking, but two factors seem particularly significant. First, if the regulation takes away the owner's right to control physical access to the property, it is much more likely to be found a taking—and almost sure to be found a taking if there is a permanent physical occupation of the property. Second, unless physical access is involved, the owner probably will not be able to claim a taking unless the regulation virtually destroys the value of the property.

At present, takings doctrine is in flux. Under Chief Justices harlan f. stone and earl warren, the Court took little interest in the taking clause. The burger court began to take a renewed interest in the area, but did not aggressively use the taking clause as a means of attacking important government regulations. It remains to be seen whether the Rehnquist Court will introduce a greater degree of activism.

Most of the current scholarship on the taking clause may be divided into three camps. One group argues for minimal judicial scrutiny of economic regulations, so that very few government actions would be held a taking. In contrast, a second group argues for vigorous scrutiny under the auspices of the taking clause—reminiscent of the era of lochner v. new york (1905). A third group argues for renewed judicial protection, but limited to a particular category of property, that of peculiar personal significance to individuals, as opposed to ordinary business interests. It is uncertain whether any of these groups of scholars will succeed in influencing the Justices. At present, the Court seems content to muddle through taking cases without the benefit of a broad theoretical perspective.

Daniel A. Farber


Epstein, Richard A. 1985 Takings: Private Property and the Power of Eminent Domain. Cambridge, Mass.: Harvard University Press.

Levy, Leonard W. 1988 Property as a Human Right. Constitutional Commentary 5:169–184.

Note 1985 The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment. Yale Law Journal 94:694–716.