Andrew William Schwartz (Shute, Mihaly & Weinberger LLP) has posted No Competing Theory of Constitutional Interpretation Justifies Regulatory Takings Ideology on SSRN. Here is the abstract:
Compensation for excessive regulation of the use of property under the Just Compensation Clause of the Fifth Amendment has gained wide acceptance. Introduced in 1922 in Pennsylvania Coal Co. v. Mahon, and gathering considerable momentum in 1978 with Penn Central Transportation Co. v. City of New York, regulatory takings constrains government regulation protecting the environment, public health, consumer safety, affordable housing, and other community interests. Upon close examination, however, the regulatory takings doctrine does not appear to be justified by any of the competing theories of constitutional interpretation: textualism, originalism, or evolutionary document. Rather, the doctrine seems to arise from a misunderstanding of the Just Compensation Clause as guaranteeing a laissez-faire political economy. The initial parts of this article rely for the most part on existing scholarship analyzing regulatory takings under the textualist and originalists theories of interpretation. The bulk of the article is devoted to an examination of regulatory takings under the evolutionary document theory, which has received less attention in the literature of takings. The argument that the regulatory takings doctrine in its entirety is unwarranted under an evolutionary document approach is founded on the absence of precedent for granting the courts a significant role in the formulation of what is essentially economic policy, and profound conflicts between regulatory takings and core values of the Constitution, such as liberty, equality, and democracy. I also respond to claims that a broad reading of the Just Compensation Clause is necessary to balance the interests of property owners against society or that regulatory takings is a practical tool for property regulation. Finally, the article recommends an alternative system for government policy-making to control the use of property that relies almost exclusively on statutes and administrative regulations adopted by the political branches of government.
I'm sympathetic to the claim that regulatory takings doctrine isn't justified by the Constitution's original meaning. But this paper is more interesting as an example of what I regard as the fallacy that living constitutionalism is a logical system capable of generating determinate outcomes rather than an exercise in judicial policymaking. To be sure, the paper is a fine brief for eliminating regulatory takings doctrine. But I can easily argue for limits on regulatory takings from a living constitution perspective:
Assuming the original Constitution did not have protection against regulatory takings, [I would say], the circumstances have changed dramatically. The modern regulatory state and its threat to property rights could never have been imagined by the framers; but if they had imagined it, they would have seen that it poses as great a threat (if not a greater threat) to the security of private property rights than do "true" takings of the type the framers feared and which the Constitution limited. To give property rights the degree of protection the framers would have wanted, we must evolve a regulatory takings doctrine they did not envision, to combat a threat they did not envision. Otherwise, their core goal to protect private property rights as a foundation of republican democracy would be rendered empty. The short of it is that, without some protection against regulatory takings, in the modern world private property is effectively at the mercy of the whim of the government, something the framers would never have tolerated.
Whether this line of argument is persuasive depends almost entirely on whether the hearer is broadly sympathetic to property rights or broadly sympathetic to the regulatory state. That is, its resolution depends on the judge's policy intuition. The idea that a resolution can be achieved by appeal to a logical process that transcends policy is pure fantasy.
To be clear, as I've said before, I don't necessarily see this conclusion as a conclusive argument against living constitutionalism. Perhaps the question "should there be constitutional limits on regulatory takings?" should be resolved by appeal to the policy intuitions of whomever happens to be on the Supreme Court at the time. My objection is to the idea that living constitutionalism contains some legalistic answer to that question, which I take to be the supposition of the paper.
Posted at 6:32 AM