Chapter 1: Introduction
Attorney General Meese . . . had a specific, aggressive,
and it seemed to me, quite radical project in mind: to use
the takings clause of the Fifth Amendment as a severe brake
on federal and state regulation of business and property.
—Charles Fried, Solicitor General for
President Ronald Reagan.1
The genesis for this Report, and the research that supports
it, was an observation: Many of the changes in takings law
that have taken place over the last 11 years correspond quite
closely to a blueprint for takings doctrine proposed by Professor
Richard Epstein in his now-famous book called Takings,
Private Property and the Power of Eminent Domain. This
observation, while by no means original, was, to us, both
remarkable and troubling. After all, Epstein’s work was
almost universally criticized (if not ridiculed) by the legal
academy and Epstein’s proposed end result — the
overturning of a century’s worth of health, safety, and
economic regulation2 —
would sink this country into a constitutional crisis as serious
as that brought about by the economic due process jurisprudence
of the Lochner-era3 Supreme
Court.
How then is it that Epstein’s work is having such a
widespread influence on the development of takings law? What
we found is a large and increasingly successful campaign by
conservatives and libertarians to use the federal judiciary
to achieve an anti-regulatory, anti-environmental agenda.
Looking first at the courts and judges deciding the most important
and influential takings cases, we noted several striking patterns.
The vast majority of important victories achieved by developers
in takings cases over the last decade have been decided by
the same three courts: the United States Supreme Court, the
Court of Appeals for the Federal Circuit and the Court of
Federal Claims. Moreover, almost without exception, the judges
on these courts ruling for developers were appointed to their
respective courts by Presidents Reagan and Bush. Finally,
the cases themselves showed remarkable activism by the jurists:
in many cases, the judges overcame seemingly insurmountable
procedural and substantive hurdles to rule in favor of the
developers.
Looking a bit deeper, we noted the political, more than the
judicial or scholarly, background of many of these same judges
and found that the appointment of these politically savvy
jurists to their posts resulted, in many instances, from a
concerted effort by conservatives and libertarians within
the Reagan and Bush administrations to use the court system
to further their attack on federal regulations. Even more
remarkably, we discovered that the most activist judges on
the Federal Circuit and the Court of Federal Claims —
the federal courts with exclusive jurisdiction over most takings
cases against the federal government — all recently have
attended the same, all-expenses-paid, week-long summer seminar
at a Montana resort hosted by a property rights group. Finally,
we found that the same conservative foundations that funded
these Montana seminars also bankroll takings litigation before
the Federal Circuit.
Turning to the process by which takings cases work their
way through the court system, what we found was equally notable.
The Pacific Legal Foundation (PLF) and a dozen other "public
interest" legal foundations located around the country
represent developers free-of-charge in takings cases. PLF
and others recruit and train an army of private practitioners
to assist them in shepherding cases through the legal system.
Large and powerful lobbies such as the National Association
of Home Builders similarly devote significant resources both
to litigating takings cases and promoting "procedural
reform legislation" in Congress that would grease the
wheels of takings litigation.
We refer to the sum of these parts — the deliberate
appointment of activist conservative judges to critical positions
on the federal judiciary; the activism of these judges in
creating constitutionally protected development rights; and
the combined efforts by developers, foundations, and non-profit
organizations to guide takings cases through the court system
— as the Takings Project (borrowing Charles Fried’s
term), and this report is devoted to outlining its contours
and chronicling its progress. The Project is not the first
campaign mounted to influence the judiciary’s interpretation
of a constitutional provision,4 but it
may well be the most comprehensive and expensive. It is certainly
among the least defensible.
The Takings Project is indefensible, first and foremost,
because there is no good reason for federal judges to overturn
popular and important health, safety, and environmental laws
to protect developers. The development rights the Project
seeks to create simply do not exist within the text or original
meaning of the Constitution, and there is no theory of judicial
review which justifies creating constitutional rights to protect
a group — developers— that needs little assistance
in the political process.
The Project is indefensible, also, because it depends upon
a simultaneous narrowing of what is considered a "nuisance"
and an expansion of what is considered property. The sponsors
of the Project, in other words, are seeking to allow the concept
of property to expand into the twenty-first century while
simultaneously freezing in time a concept that has been a
fixture of property law for centuries — the principle
that a property owner has no right to use his or her property
in ways that injure his or her neighbors.
The Project is indefensible, finally, because it is not grounded
in any consistent or coherent theory on the proper role of
the federal judiciary in policing the legislative process.
At the same time the Takings Project asks for what Richard
Epstein called "a level of judicial intervention. . .
far greater than we have ever had,"5 many
of the Project’s strongest proponents are using cries
of judicial activism to delay confirmation of President Clinton’s
judicial appointments.6 At the
same time the Takings Project seeks a dramatic expansion of
the text and meaning of the Takings Clause, many of its proponents
are relying on a narrow, textual interpretation of the Equal
Protection Clause to attack all forms of affirmative action.7 The
Project is indefensible, in other words, for its hypocrisy.
The Project is hypocritical, moreover, because its promoters
portray the Project as a "civil rights" issue and
themselves as champions of the small landowner when the primary
objective of the Project is, and has always been, the advancement
of an anti-regulatory, anti-environmental political agenda.
The Takings Project is at an important juncture. A dozen
years in, the Project’s promoters have won important
victories, but remain far from achieving their ultimate objective.
The expansive opinions of the Federal Circuit and the Court
of Federal Claims are hindering the operation of important
environmental laws including the Endangered Species Act and
the wetland provisions of the Clean Water Act, but have yet
to survive scrutiny by the Supreme Court. The Supreme Court,
instead, has handed Project advocates important, but narrow,
victories, containing both the foundation for a more dramatic
expansion of takings law, and, potentially, the seeds of the
Project’s defeat. The direction the Supreme Court will
follow is at this point unknown and probably will depend on
unknowable developments in the composition of the Court. The
Supreme Court is so closely divided on takings issues that
one appointment by President Clinton or his successor(s) could
determine the ultimate outcome of the Project.
This Report proceeds in five Chapters. Chapter Two begins
with a brief discussion of the text of the Takings Clause,
the original intent of the Framers of the clause, and the
gradual evolution of the takings doctrine over nearly two
centuries. After a summary of takings law in 1985, when Professor
Epstein’s book was published, Chapter Two turns to Epstein’s
work. In particular, it examines Epstein’s argument that
the Takings Clause itself renders zoning laws, rent control,
and a wide variety of other laws regulating land use "constitutionally
suspect or infirm." Drawing upon a decade of scholarly
criticism, the Report thoroughly refutes Epstein’s claim
that his proposed result is compelled by or even consistent
with the text of the Constitution. We conclude, as have many
before us, that whatever value Takings may have as
a polemic in support of Epstein’s reactionary political
views, it is, indeed, as one law professor called it, a "travesty
of constitutional scholarship."8
Chapters Three and Four summarize the Takings Project. Chapter
Three begins with a brief discussion of how President Reagan’s
second term Attorney General, Edwin Meese, and his advisors
seized upon Professor Epstein’s blueprint for interpreting
the Takings Clause as a vehicle to implement Reagan’s
attack on federal health, welfare, and environmental regulations.
Chapter Three then turns to the most important legacy of the
Reagan and Bush presidencies, the appointment of conservative
activist judges to critical positions in the federal judiciary.
Chapter Four identifies the individuals and groups that are
most responsible for directing the Takings Project and summarizes
the intense litigation, training and lobbying campaign these
individuals and groups are waging to move takings cases through
the court system.
Chapter Five documents the results of the Takings Project.
The Chapter begins with a discussion of how the Supreme Court
and lower federal courts have ignored innumerable procedural
roadblocks in eagerly reaching out to hear the merits of "poster
child" cases brought to them by conservative legal foundations.
It then discusses three of the most important aspects of Professor
Epstein’s takings doctrine and traces the progress of
those ideas into the nation’s case law. The report finishes
in Chapter Six with a summary of the status of the Takings
Project in 1998 and a brief discussion of what opponents of
the Project can do to prevent the Project from advancing further
toward its objective of making all forms of land use regulation
too expensive to enforce.
Go to CHAPTER
2:The Takings Clause, Takings
Doctrine Circa 1985 & Richard Epstein's Theory
Endnotes
1 Charles Fried, Order and
Law: Arguing the Reagan Revolution — A Firsthand
Account 183 (1991) [hereinafter Order and Law].
2 See Richard A.
Epstein, Takings, Private Property and the Power of
Eminent Domain (1985) at 281 ("It will be said that
my position invalidates much of the twentieth century
legislation, and so it does").
3 The Lochner-era is named
for its most famous case, Lochner v. New York, 198 U.S.
45 (1905), in which the Supreme Court struck down a law
establishing a 60-hour work week for bakery employees.
During this period, which lasted roughly forty years from
1897 through 1937, the Supreme Court interpreted the
Contract and Due Process Clauses of the Constitution to
invalidate labor laws and other progressive social reform
initiatives of that era. This era reached its zenith in
the mid-1930’s, when the Court repeatedly struck
down important provisions of President Roosevelt’s
New Deal, and ended in 1937 when Justice Roberts,
switched his vote and became the fifth justice necessary
to uphold New Deal regulations. See West Coast
Hotel Co. v. Parrish, 300 U.S. 379 (1937); NLRB v. Jones
& Laughlin Steel Corp. 301 U.S. 1 (1937).
4 For an inspiring account of
the century’s most famous and, arguably, most
successful constitutional litigation campaign, see
Richard Kluger, Simple Justice (1975) (discussing the
NAACP’s constitutional litigation campaign leading,
ultimately, to the Supreme Court’s landmark ruling
in Brown v. Board of Education, 347 U.S. 483 (1954)).
5 See Epstein, supra
Ch.1, note 2, at 30—31.
6 Orrin Hatch, Judicial
Nominees: The Senate’s Steady Progress, Wash
Post, Jan. 11, 1998, at C9 ("Judicial activism from
the left or from the right has plagued this nation, and
we should reject nominees who will not apply the
Constitution and statutes as written and will instead
substitute their own personal preferences. Judges must
understand their role in our constitutional system as
impartial magistrates, not Monday-morning
legislators."); see also James E. Ryan &
Douglas T. Kendall, Property Rights: What Does the
Constitution Say? Conservatives Favor Private Ownership
Over Environmental Protections, St. Louis Post-
Dispatch, July 18, 1997 at B7 (critiquing Hatch’s
simultaneous attack on judicial activism and promotion of
the Takings Project).
7 See Douglas T.
Kendall & James E. Ryan, The Right Can’t Have
It Both Ways, L.A. Times, Feb. 8, 1998, at M5.
8 Thomas C. Grey, The Malthusian Constitution,
41 U. Miami L. Rev. 21, 24 (1986).
To CHAPTER 2: The Takings Clause,
Takings Doctrine Circa 1985 & Richard Epstein's Theory
To Table of Contents for The
Takings Project: Using Federal Courts
To Attack Community and Environmental Protections
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