Takings and Private Property on the Rehnquist Court

Abstract

This article contributes to a symposium on the Rehnquist Court conducted at Northwestern University, April 2004. It surveys the Rehnquist Court's takings cases on the assumption that the Takings Clause presents a choice between two fundamental alternatives - the interest-balancing formula of Penn Central Transportation Co. v. New York City, and a nuisance-based account of takings, with roots in American natural-law theory, Lockean property theory, and case law from early American state takings and nuisance cases.

From this perspective, takings law remains quite close to the Penn Central pole near the end of the Rehnquist Court, for two reasons. First, a solid coalition of Justices, including the Court's liberals and also Justices O'Connor and Kennedy, still subcribe to the substantive property theory that justifies the Penn Central approach. Second, the conservatives on the Rehnquist Court - the Justices most interested in questioning Penn Central - never managed to generate a coherent theory of regulatory takings. Among other reasons, they did not understand how Lockean and natural-law property theory might inform the substance or the original meaning of the Takings Clause.

The article then uses the Rehnquist Court's leading takings cases to draw lessons about the strengths and weaknesses of the jurisprudential projects of the different blocs on the Court. The main lessons are for the conservatives, especially Justice Scalia. The Rehnquist Court's conservatives generally favor originalism and bright-line rules; they do not always take it well when forced to choose between these two attachments. They mishandled takings cases in part because takings law forces such a choice on them. Separately, the political theory that justifies Justice Scalia's originalism may have gotten in the way of his original-intent analysis. Scalia (like Chief Justice Rehnquist) embraces originalism at least in part because he is a moral positivist. That positivism may have made him too skeptical of natural-law theory to take it seriously - even if it informs the plain and original meanings of the Takings Clause.

Keywords: Rehnquist Court, takings, natural law, natural rights, property, land use, living Constitution

JEL Classification: K11, K32