Twilight of the Idols: Philosophy and the Constitutional Law of Takings

Abstract

The constitutional law of takings has been recognized to be in substantial disarray for more than half a century. The legal academy has repeatedly called out the manifold problems in the law and offered a number of competing, highly theoretical, and inconsistent approaches to reform our Takings Clause jurisprudence. The academy congratulates itself on the brilliance of its constitutional thinkers and the importance of their contributions. Still, the debate between competing theories of the Just Compensation Clause has remained unresolved and the law in disarray. This article resolves the apparent paradox in the conflict between the shining brilliance of the academy and the stubborn confusion of our law.

Frank Michelman and Bruce Ackerman argue for a theory of just compensation founded on a liberal political theory. Richard Epstein defends a radically different theory based upon a libertarian political theory. Neither foundational theory bears much resemblance to current just compensation law in the courts. The only thing the competing theorists agree on is that we need a foundation of political philosophy to construct our constitutional doctrine of the state’s powers and obligations with respect to takings of private property. The courts have remained largely indifferent to academic theorists’ claims and theories even as they have continued to struggle to decide the takings controversies they have faced. Takings cases have consistently fragmented the Court.

The premise shared among these renowned academic commentators that we must ground our constitutional takings jurisprudence on a political philosophy of property, justice, and fairness and a philosophical account of the power of the state is mistaken. No such foundation is necessary or possible. There is a path toward reforming our Takings Clause jurisprudence in the prosaic, canonical methods of constitutional argument and decision. This article shows why we should eschew the highfalutin theoretical gambits of the academy and how we may nevertheless make progress in reforming our takings jurisprudence.

Keywords: constitutional law, takings, jurisprudence, Bruce Ackerman, Richard Epstein, Frank Michelman, Kant, John Rawls, utilitarianism