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Chapter 2: The Takings Clause, Takings Doctrine Circa 1985
& Richard Epstein’s Theory
Constitutional Text and Original Intent
The Takings Clause states in its entirety: "nor shall
private property be taken for public use, without just compensation."
By its terms, the clause’s scope is quite narrow: It
applies only when the government "takes" private
property and it does not prevent such takings, but rather
requires that the government provide "just compensation"
when takings occur. While the term "take" is not
defined in the Constitution, it most naturally means an expropriation
of property, such as when the government exercises its eminent
domain power to acquire private property to build a road,
a military base or a park.
This plain language interpretation of the clause is consistent
with both the intent of the Framers of the Constitution and
the opinions of the Supreme Court in the eighteenth and early
nineteenth centuries. While there is considerable academic
disagreement over the Framers’ general views on property,
there is little debate that the Framers believed that the
Takings Clause only would prohibit actual expropriations of
private property. Even justices like Antonin Scalia, who have
applied the clause beyond its text and original meaning, start
from a recognition that the Framers believed the Clause would
only apply to actual expropriations of property.1
Similarly, there is no dispute that until the second half
of the nineteenth century, the Supreme Court steadfastly refused
to extend the clause beyond actual expropriations. An 1870
opinion by the Supreme Court illustrates clearly the position
the Court took during this era:
[the Takings Clause] has always been understood as referring
only to direct appropriation, and not to consequential injuries
resulting from the exercise of lawful power. . . . [I]t
is not every hardship that is unjust, much less that is
unconstitutional; and certainly it would be an anomaly for
us to hold an act of Congress invalid merely because we
might think its provisions harsh and unjust.2
The Evolution of
Modern (Pre-1985) Takings Law
The notion that the Takings Clause may confine government
actions beyond the purposeful expropriation of property emerged
gradually over the next one-hundred years as the Supreme Court
ruled on cases in which government action very closely resembled
expropriations of property. The first of these cases, Pumpelly
v. Green Bay Company, involved a state-authorized dam
that flooded Pumpelly’s property. In requiring compensation,
the Court noted:
[i]t would be a very curious and unsatisfactory result,
if in construing a provision of constitutional law. . .
it shall be held that if the government refrains from the
absolute conversion of real property to the uses of the
public it can destroy its value entirely, can inflict irreparable
and permanent injury to any extent, can, in effect, subject
it to total destruction without making any compensation,
because, in the narrowest sense of that word, it has not
taken for the public use.3
To avoid this "curious and unsatisfactory" result,
the Court ruled that, "where real estate is actually
invaded," a taking may be held to have occurred.4
Nearly fifty years later, in the 1922 case of Pennsylvania
Coal v. Mahon, the Court expanded the reach of
the Takings Clause again to encompass particularly oppressive
regulations. Mahon involved the Kohler Act, a state
law that prevented coal companies from mining coal that formed
the support for the surface area. Pennsylvania law recognized
this "support estate" as a distinct property interest,
and Justice Holmes’ found the Act "purports to abolish
what is recognized in Pennsylvania as an estate in land —
a very valuable estate..."5 Justice
Holmes declared that the Pennsylvania law had "very nearly
the same effect for constitutional purposes as appropriating
or destroying [the estate]," and, again relying on this
analogy to an expropriation of property, declared that when
regulations "go too far" they can be considered
takings.6
At about the same time the Court, in Pumpelly, first
expanded the reach of the Takings Clause beyond actual expropriations,
the Court also clarified that the clause was not intended
to interfere with legitimate attempts by legislatures to protect
public health and safety. In doing so, the Court established
a "nuisance exception" to takings liability. The
exception originated in Mugler v. Kansas, a case involving
a state law that prohibited the operation of breweries. The
Court ruled in Mugler that "all property in this
country is held under the implied obligation that the owner’s
use of it shall not be injurious to the community"7
and that the Takings Clause does not require compensation
for losses a property owner may sustain "by reason of
their not being permitted, by a noxious use of their property,
to inflict injury upon the community."8
Following Mugler, the Supreme Court applied the nuisance
exception to justify a significant number of legislative prohibitions
without compensation.9 The
Court recognized that declaring an activity a nuisance falls
within the province of the legislature, and that the legislature
is not limited to outlawing only those activities that have
been considered by courts to be common law nuisances.10
The Court also acknowledged that what is and is not a nuisance
would change over time and that the legislature could declare
that uses that were formerly commonplace are contemporary
nuisances.11
Justice Brennan summarized the status of takings law prior
to 1985 in his opinion for the Court in Penn Central Transportation
Co. v. City of New York.12 As Justice
Brennan noted, the question of what constitutes a regulatory
takings (i.e. when a regulation was sufficiently akin to an
expropriation) "has proved to be a problem of considerable
difficulty" and the Court "quite simply, has been
unable to develop any 'set formula' for determining when 'justice
and fairness' require that economic injuries caused by public
action be compensated by the government, rather than remain
disproportionately concentrated on a few persons."13 Instead,
the Court relied upon a balancing of three factors: (1) the
economic impact of the regulation, (2) the extent the regulation
interferes with "distinct investment-backed expectations,"
and (3) the character of the government action.14
Under Penn Central’s balancing test, no one factor
is alone determinative,15
and significant diminutions in property value are generally
permissible without compensation.16
While not always simple to apply, the doctrine the Court
devised in Pumpelly, Mugler, Mahon and Penn Central
had a logic based on the text and the original meaning of
the clause. The clause was applied primarily to prevent uncompensated
expropriations of property. Where the clause was extended
beyond expropriations, the Court was careful to limit the
clause’s application to regulations that reasonably could
be characterized as being akin to expropriations.
Professor
Epstein’s Anti-Regulatory Blueprint
Enter Professor Epstein. In a theory first articulated in
the late 1970s and, with a grant from a conservative foundation,
printed in book form in 1985,17 Professor
Epstein posited that the Takings Clause could be used as a
tool to implement the Reagan administration’s crusade
against federal regulations. Put another way, Epstein theorized
that the Takings Clause renders unconstitutional any and all
redistributions of wealth, and thus renders "constitutionally
infirm or suspect many of the heralded reforms and institutions
of the twentieth century: zoning, rent control, workers’
compensation laws, transfer payments, [and] progressive taxation."18
Professor Epstein’s thesis is simple enough to describe.
He contends that there is a natural right to property ownership,
and that, based on the philosophy of John Locke, the government
has only a very limited right to interfere with such ownership.
Property ownership, in turn, consists of a bundle of rights,
of which possession, use, and disposition are the most important.
Any governmental interference with any of these rights, Epstein
asserts, is a taking that must be compensated — "no
matter how small the alteration and no matter how general
its application."19
To reach his result, Epstein suggested that the Supreme Court
should revise then-standing precedent in several critical
ways. First, and most importantly, Epstein argued that the
Court should dramatically increase the number of regulatory
actions that are subject to judicial review. Under Penn
Central, the Court reviewed a very narrow category of
cases under the Takings Clause; typically only those regulations
that had a significant impact on the value of the "parcel
as a whole."20 Epstein
argued as follows: (1) that property ownership can be divided
into "incidents" or "sticks in the bundle"
(such as the right to use the property, the right to exclude
others and the right to sell or grant property to one’s
heirs) and that the Takings Clause "extends to each stick
in the bundle as well as to the bundle itself,"21 and
(2) that the Takings Clause protects against partial as well
as total takings. In other words, according to Epstein, if
the government interferes in any way with any of the sticks-in-the-bundle,
the property owner has a potential takings claim.22
Second, Epstein advocated a reconstruction of the nuisance
exception to Takings Clause liability. As described above,
the nuisance exception crafted by the Supreme Court in Mugler
and subsequent cases was an evolving doctrine, defined by
the legislature and changing with new notions of what constitutes
an injurious use. Epstein advocated that the Court adopt a
narrower, static definition of the nuisance exception that
would, in essence, freeze the notion of what is a nuisance
to the narrow category of injurious uses (generally involving
physical invasions of neighboring properties) that historically
have been recognized as a nuisance by common law courts.
Finally, citing favorably to the Supreme Court’s discredited
opinion in Lochner v. New York, Epstein argued that
courts should apply a form of heightened scrutiny to examine
the link between the ends (purposes) of land use regulations
and the means for achieving those ends.
Epstein
Critiqued
Although criticized (if not ridiculed) within the legal academy
as "shallow,"23 a "travesty
of constitutional scholarship,"24 and
a failure as a matter of history, logic, philosophy and textual
analysis25 —Takings
has been used as a legitimizing tool by those interested in
using the Takings Clause to halt government regulation.26
More importantly, as described in detail in Chapter Five,
many of the changes to takings doctrine that Epstein proposed
now have found their way into federal case law, and the judges
and justices making these critical alterations to constitutional
law have relied extensively upon Takings.27 It
is therefore important to articulate, clearly and early in
this report, the legion and severe flaws in Professor Epstein’s
work. These flaws render Epstein’s work thoroughly unable
to bear the intellectual weight that conservative and libertarian
judges, activists and policy makers have tried to rest upon
it.
Correcting John Locke
The principal reason Takings is both dangerous and
disingenuous is that it purports to be a book about what the
text of the Constitution says, but it is actually an extended
description of what Professor Epstein wishes the Constitution
said.28 Most
remarkable is Epstein’s claim that his end result —
the requirement of compensation for virtually any regulation
that diminishes the value of property— is commanded by
the text of the Constitution.29 How
Epstein reaches this point is difficult to follow, as his
theory of interpretation is both elusive and internally inconsistent.
He begins his book by contending that property is a natural
right and that Locke’s philosophy of limited government
animates the Constitution. Both claims are controversial,
and Epstein offers no evidence that the Framers believed property
was a natural right (nor does he explain how such a belief
is reflected in the Constitution), nor does he confront the
vast body of scholarly literature that demonstrates that Locke
was only one of several philosophers influential at the time
the Constitution was framed.30 What
is truly amazing, however, is that after extolling the influence
of Locke, Epstein seeks to "correct" a portion of
Locke’s philosophy that is inconsistent with Epstein’s
theory.
Specifically, Locke believed that property originally was
owned in common as a gift from God. Individuals, according
to Locke, could acquire private property by investing their
labor in the property, and as a result, one could assert private
property rights in the product of one’s labor. These
private rights, however, could only be exercised "'where
there is enough, and as good left in common for others.'"31 Locke’s
theory of property, which Epstein contends influenced the
Constitution, thus provided for the right of each person to
an equal share of property and precluded private acquisitions
of property that would deprive others of this right. Instead
of confronting this aspect of Locke, and explaining how it
can possibly fit with Epstein’s theory that individuals
should be completely free to acquire as much property as possible,
Epstein brushes it aside by "correct[ing]" Locke’s
philosophy to allow for the unfettered acquisition of private
property. This correction, although done almost casually by
Epstein, is a radical restatement of Locke’s philosophy.
As one commentator noted, it is "akin to a Christian
claiming that Judaism is consistent with his religion, with
a small correction of Judaism texts to embrace Jesus Christ
as the Son of God."32
Epstein’s
"Plain Meaning"
Epstein’s superficial and manipulative treatment of
Locke, which occurs early on in Takings, gives a good
preview of things to come. After explaining the philosophical
foundations of his theory, Epstein then addresses constitutional
interpretation directly. Contrary to generations of scholars
who have struggled to make sense of the Takings Clause, Epstein
suggests that the answer is easy: simply follow the ordinary
language of the text. Epstein thus blithely contends, in a
mere 12 pages of his 350 page book, that the language of the
Takings Clause alone, which requires that "private property
shall not be taken for public use without just compensation,"
renders suspect any interference with any strand in a property
owner’s bundle of rights — i.e., almost all social
welfare and land-use regulation of the last sixty years. He
recognizes that the key terms in the clause — private
property, taken, public use, and just compensation —
are not defined in the Constitution, but suggests that the
terms can be concretely defined by looking to "the way
these words [were] used in ordinary discourse by persons who
are educated in the normal social and cultural discourse of
their own time."
One has the immediate impression when reading this section
of Epstein’s book that it cannot be that simple, and
one wonders why — if the answers are all in the plain
language of the constitutional text — Epstein felt the
need to begin his book with a discussion of natural rights
and Locke’s philosophy. The answers become clear in the
ensuing chapters, as Epstein fails to adhere to the "plain
language" approach he advocates and continually falls
back on philosophical and natural rights arguments to support
his theory. As Joseph Sax observed, Epstein’s inexplicable
shifts gives one the sense that Epstein is playing a game
"whose rules only he knows."33 Not
surprisingly, Epstein’s interpretive shell game "produces
a Constitution that comports perfectly with his personal political
philosophy."34
An example should give a good idea of how Epstein accomplishes
his task. Perhaps the most important question in takings law
today is whether property owners should be compensated when
a land-use regulation diminishes the value of a piece of property,
but does not take away all value. True to his conservative
values, if not to constitutional principle, Epstein argues
that property owners of course must be compensated under such
circumstances. According to Epstein, a "taking"
has occurred whenever the government "diminish[ed] the
rights of the owner in any fashion. . . no matter how small
the alteration."35
There is one problem with this contention: the word "take"
does not mean "diminish" today, and there is no
evidence that it ever did. The same is true with the word
"alter" — it simply does not mean "take"
and never did. There is thus no way to justify Epstein’s
conclusion as flowing from the text of the Takings Clause.
On the contrary, it turns out that with regard to perhaps
the most crucial and controversial issue in takings law, whether
property owners should be compensated whenever regulations
diminish but do not eviscerate property values, Epstein’s
own anointed theory of constitutional interpretation —
following the plain language of the text — leads to precisely
the opposite result of that which he advocates. True to form,
Epstein does not confront this obvious inconsistency, but
ducks it; he never offers a definition of the term "take,"
nor does he argue that his expansive notion of the reach of
the Takings Clause is consistent with the ordinary meaning
of the term "take." Instead, he falls back on his
philosophical argument that the Framers, in reliance on Locke
(corrected, of course, to suit Epstein’s theory), granted
the government very limited power to interfere with private
property. As observed by Professor Alexander, while Epstein’s
contention "is an argument for a broad construction of
takings, it is surely not the argument of a textual literalist."36
The inconsistencies in Epstein’s theory can be illustrated
by another example. Epstein argues on the one hand that we
should interpret the words of the Takings Clause according
to the way those words were used by educated persons at the
time of the framing of the Constitution. But then he suggests,
on the other hand, that we should simply ignore what those
same educated persons actually did in terms of regulating
land, labor, or wages. It is therefore not important to Epstein
that the framing generation allowed extensive land-use regulations
and wage and price controls; Epstein is not at all concerned
that his interpretation is inconsistent with the evidence
regarding the Framers’ original intent. Why, though,
should we ignore what these educated persons did when trying
to discern how these same educated persons would have interpreted
the words in the constitution? After all, even Epstein acknowledges
that historical sources "are exceedingly helpful in allowing
us to understand the standard meanings of ordinary language
as embodied in constitutional text."37
Historical sources, in turn, indicate quite strongly that
the standard meaning of the phrase "take private property"
did not encompass land-use regulations.38
Epstein’s Call For
Judicial Activism
In short, Epstein’s conclusions about the scope of the
Takings Clause are at odds with the "plain language"
method of constitutional interpretation which he advocates.
His conclusions rest instead on vague, adulterated philosophical
foundations that he fails to connect to the Constitution itself.
The blatant and repeated inconsistency between his "plain
language" approach and the radical results he reads into
the Constitution, together with his occasional reliance on
natural rights and his corrected version of Locke’s philosophy,
largely explain why Takings was received with such
disdain by constitutional scholars. The book simply does not
offer a principled means of interpreting the Takings Clause.
Rather it offers an abundance of smoke and mirrors that advocates
and judges sympathetic with Epstein’s distaste of government
regulation can use to provide some semblance of authority
to their arguments about what the Takings Clause means. And
this appears to be precisely what Epstein intended. In his
book and in the op-ed pages of the Wall Street Journal
in an article entitled "Needed: Activist Judges for Economic
Rights,"39
Epstein suggested that implementing his theory would require
"a level of judicial intervention far greater than we
now have, and indeed far greater than we ever have had."40
Epstein’s call for judicial activism has been answered
in part by the Federal Circuit and the Supreme Court, both
of which, as described later in this report, have expanded
the scope of the Takings Clause in recent years, often along
lines suggested in Epstein’s book.41 Epstein’s
call has also inspired the constitutional litigation strategies
of the current property rights movement, which increasingly
has turned its attention to the federal judiciary as the means
by which it will accomplish its agenda.42
Judicial activism, of course, is loudly decried by the same
conservatives who comprise the property rights movement —
Orrin Hatch, to cite one prominent example —on the grounds
that unelected federal judges should not, without clear support
in the Constitution, interfere with democratic law-making.
This criticism, however, applies with perfect and ironic force
to the expansion of the Takings Clause as such an expansion
is without clear support in the Constitution or in the historical
evidence regarding original intent. Indeed, prominent conservative
legal scholars — including Robert Bork and Charles Fried
— have strongly criticized the Takings Project on just
this basis.43
Nor can this particular brand of judicial activism be justified
on the ground that federal courts would simply be correcting
defects in the legislative process. Constitutional scholars
have defended judicial protection of "discrete and insular
minorities" against claims of judicial overreaching by
arguing that it is appropriate, and indeed enhances the democratic
operation of government, for federal courts to protect those
who are shut-out from the normal political process because
of systemic prejudice or a denial of access to power.44
Judicial intervention, in other words, might be appropriate
to correct a legislative process that does not pay sufficient
attention to the needs and concerns of "discrete and
insular" minorities. With regard to most property owners,
and certainly with regard to developers, it is quite difficult
to justify federal court intervention on the ground that such
groups or individuals have limited access to or are routinely
shortchanged by the political process.
In the end, then, Richard Epstein and the promoters of the
Takings Project are calling for federal judges to interfere
substantially with a plethora of democratically-enacted and
democratically-supported legislative measures, even though
such a result is not commanded by the language of the Constitution,
not explained by reference to the Framers’ intentions,
and not justified by any coherent constitutional theory. This
call for heightened judicial protection, moreover, is made
on behalf of a group that generally does quite well in the
legislative process. It is difficult to imagine a less compelling
agenda for the federal judiciary.
Go to CHAPTER
3: The Origins of the Takings
Project
Endnotes
1 See Lucas v .South
Carolina Coastal Comm’n, 505 U.S. 1003, 1028
n.15 (1992) ("Justice Blackmun is correct that early
constitutional theorists did not believe that the Takings
Clause embraced regulations of property at all. .
."); see also, id. at 1056—58 (Blackmun
J. dissenting); Epstein, supra Ch. 1, note 2, at
26—29 (recognizing historical evidence that the many
of the Framers thought the Takings Clause was limited in
application to physical expropriations but concluding
that there is no need "to take into account the
actual historical intentions of any of the parties who
drafted or signed the document"); William Michael
Treanor, The Original Understanding of the Takings
Clause and the Political Process, 95 Colum. L. Rev.
782, 825 (1995); Robert H. Bork, The Tempting of America:
The Political Seduction of the Law (1990) at 230
("My difficulty is not that Epstein’s
constitution would repeal much of the New Deal and the
modern regulatory-welfare state but rather that these
conclusions are not plausibly related to the original
understanding of the takings clause.").
2 Legal Tender Cases, 79 U.S.
(12 Wall.) 457, 551—52 (1870).
3 80 U.S. (13 Wall.) 166, 177—178 (1872).
4 Id. at 181.
5 260 U.S. 393, 414 (1922).
6 Id. at 414—15.
7 Mugler v. Kansas, 123 U.S.
623, 665 (1887).
8 Id .at 669.
9 See Goldblatt v.
Town of Hempstead, 369 U.S. 590 (1962) (prohibition on
operation of a gravel pit); Miller v. Schoene, 276 U.S.
272 (1928) (infected cedar trees); Hadacheck v.
Sebastian, 239 U.S. 394 (1915) (prohibition on
brickyards); Murphy v. California, 225 U.S. 623 (1912)
(pool halls); Powell v. Pennsylvania 127 U.S. 678 (1888)
(ban on sale of oleomargarine); see also Chicago,
Burlington & Quincy Ry. Co. v. Illinois, 200 U.S. 561
(1906) (no compensation required when railroad forced to
tear down and rebuild an unsafe bridge).
10 Goldblatt, 369 U.S.
at 593; Hadacheck, 239 U.S. at 411; Reinman v.
City of Little Rock, 237 U.S. 171, 176 (1915)(declaring
it "beside the question" whether a livery
stable was a common law nuisance and noting that the
legislature could "declare that in particular
circumstances . . . a livery stable shall be deemed a
nuisance in fact and in law. . .").
11 Village of Euclid v. Ambler
Realty Co., 272 U.S. 365, 386 (1926).
Regulations,
the wisdom, necessity and validity of which, as
applied to existing conditions, are so apparent that
they are now uniformly sustained, a century ago, or
even a half century ago, probably would have been
rejected as arbitrary and oppressive. . . while the
meaning of constitutional guaranties never varies,
the scope of their application must expand or
contract to meet the new and different conditions
which are constantly coming within the field of their
operation.
Id. at
387.
12 438 U.S. 104 (1978).
13 Id .at 123—24.
14 Id. at 124.
15 Id. at 130—31
& n. 27.
16 See Euclid,
272 US. at 384 (permitting 75% diminution in value); Hadacheck,
239 U.S. at 405 (permitting 92.5% diminution in value
form $800,000 to $60,000); see also Concrete Pipe
& Prod. of Cal., Inc. v. Constr. Laborers Pension
Trust for So. Cal., 508 U.S. 602, 645 (1993) (rejecting a
takings claim based on allegations that an
employer’s "withdrawal liability" from a
multi-employer pension plan required payments of
"46% of shareholder equity," on the grounds
that "our case have long established that mere
diminution in the value of property, however serious, is
insufficient to demonstrate a taking.").
17 Epstein, supra Ch.1,
note 2, at xi (recognizing "a generous grant from
the Institute for Educational Affairs").
18 Id. at x.
19 Id.
20 See Penn Central,
438 US. at 130—132.
21 Epstein, supra Ch.1,
note 2, at 58.
22 See id at 57, 62.
There is no
hierarchy among incidents, no degrees of ownership.
There is a partial taking of property if possession
is removed, and use and disposition remain; if use is
removed, and possession and disposition remain; or if
disposition is removed, and use and possession
remain. Nor is there a requirement that the loss of
the incident be total; partial losses of single
incidents may determine the measure of damages, but
may not negate the taking. Any deprivation of rights
is a taking, regardless of how it is effected or the
damages it causes.
Id. at
62.
23 Thomas Ross, Taking
Takings Seriously, 80 Nw U. L. Rev. 1591, 1592
(1987).
24 Thomas C. Grey, supra Ch.1,
note 8, at 24. Earlier in Grey’s article he notes
that, in many respects, Takings "belongs with
the output of the constitutional lunatic fringe." Id.
at 23.
25 See Joseph L. Sax, Takings,
53 U. Chi. L. Rev. 279, 279 (1986). For additional
evidence of the disdain with which scholars received Takings,
see text and notes below and Laurence H. Tribe,
American Constitutional Law §9—6, at 606 n.6 (2d
ed. 1988) ("the gaps, flawed assumptions and
argumentative elisions in Epstein’s reactionary
interpretation of the Fifth Amendment [are] too numerous
to address fairly here . . ."); Martin S. Flaherty, History
"Lite" in Modern American Constitutionalism, 95
Colum. L. Rev. 523, 556, 567 (1995).
26 See Ross, supra
Ch.2, note 23, at 1592, 1603; Treanor, supra Ch.
2, note 1, at 815 ("[a]lmost certainly, in recent
years Professor Richard Epstein has influenced political
discourse about the Takings Clause more than any other
academic"); Ed Carson, Property Frights (property
rights), Reason, May 1, 1996, at 29; ("Richard
Epstein provided the intellectual framework for the
property rights movement. . . . Public interest law
firms, such as the Institute for Justice, Pacific Legal
Foundation, and the Northwest Legal Foundation, used
Epstein’s work to launch a property rights
renaissance in the courts.")
27 See e.g., Michael C.
Blumm, The End of Environmental Law? Libertarian
Property, Natural Law, and the Just Compensation Clause
in the Federal Circuit, 25 Envtl L.171, 193 (1995)
("[w]hat is even more remarkable about Florida
Rock is that its 'partial takings' doctrine seems to
have come directly from Professor Epstein’s
book").
28 See Bork, supra Ch.2,
note 1 at 230 (1990) ("Epstein has written a
powerful work of political theory, one eminently worth
reading in those terms, but has not convincingly located
that political theory in the Constitution"). As
Professor Sax observed in his review, "the book
purports to be constitutional theory, but it makes no
effort to come to terms with more than a century of
constitutional law development." Sax, supra Ch.2,
note 25, at 280.
29 See Epstein, supra
Ch.1, note 2, at 31.
30 See Treanor, supra
Ch.2, note 1 at 823—24 ("Epstein’s
equation of Lockean ideology with the political thought
behind the Takings Clause is incorrect While it would be
wrong to say that Locke had no influence on the founding
generation, it is equally incorrect to describe Lockean
liberalism as the ideology of the framing.");
Flaherty, supra Ch.2, note 25 at 567 ("if the
past two generations of historical work have settled upon
any point, it is that Lockean philosophy was not
dominant in the eighteenth century. . .")(emphasis
in original).
31 See Epstein, supra
Ch. 1, note 2, at 10—11 (citing John Locke, Of Civil
Government, ¶27 (1690)).
32 Id. See also
Charles Fried, Protecting Property—Law and
Politics, 13 Harv. J.L. & Pub. Pol’y 44,
48—49 (1990). Fried, Solicitor General during
Reagan’s presidency, wrote with regard to
Epstein’s "correction" of Locke that
"Locke himself. . . was insufficiently Lockean"
for Epstein, and thus "Professor Epstein is moved to
complete not only the text of the Constitution by
reference to the Lockean spirit, but Locke’s text
itself." Id.
33 Sax, supra Ch.2,
note 25, at 280.
34 Id at 282.
35 Epstein, supra Ch.1,
note 2 at 57.
36 Larry Alexander, Takings
of Property and Constitututional Serendipity, 41 U.
Miami L. Rev. 223, 225 (1986).
37 Epstein, supra
Ch.1,note 2, at 29.
38 See John F. Hart, Colonial
Land Use Law and Its Significance For Modern Takings
Doctrine, 109 Harv. L. Rev. 1252, 1258 (1996)
("Today’s doctrine of regulatory takings only
makes sense as a reading of the Takings Clause if, as the
Court has said, land use regulation was confined to
injurious uses when the Fifth Amendment was adopted, with
regulation of noninjurious uses coming much later.
(citation omitted). The history presented in the Article
shows, to the contrary, that regulation of non-injurious
uses of land was very common at the time of the
nation’s founding. This prevalence implies that the
Framers did not address regulation in the Takings Clause
because they did not regard regulation as a form of
taking.") (citation omitted).
39 Grey, supra Ch.1,
note 8, at 22 n2 (quoting the article).
40 See Epstein, supra
Ch.1, note 2, at 30.
41 See, eg., James L.
Huffman, Judge Plager’s "Sea Change" in
Regulatory Takings Law, 6 Ford. Envtl. L.J. 597,
600—10 (1995) (praising Judge Pager’s opinion
in Florida Rock, but suggesting that it could have been
improved by an even closer adherence to the doctrine
outlined by Professor Epstein); see also James L.
Huffman, A Coherent Takings Theory At Last: Comments
on Richard Epstein’s Private Property and the Power
of Eminent Domain, 17 Envtl. L. 153 (1986).
42 See, eg., Fried, supra
note 32, at 48 ("The text and inspiration for some
of the boldest of the recent litigation efforts has been
Richard Epstein’s celebrated book, Takings.);
Ed Carson, supra Ch.2,note 26; Mark Pollot, Grand
Theft and Petit Larceny: Property Rights in America, at
161 (1993)("If lasting change is to come in property
rights protection, it will come from court actions that
resolve questions that are presently unresolved.
Legislation is too open to change whereas judicial
rulings of constitutional dimension cannot be changed by
the legislature.").
43 Bork, supra Ch.2,
note 1, at 223, 230—231 ("[t]hough I am more in
sympathy with [Epstein’s] political ends than I am
with the objectives of the ultraliberals, I do not think
they establish satisfactorily that those ends may be
reached through the Court"); see Fried, supra
Ch.2, note 32, at 48—51. See also, Deborah
Graham, Conservative Academics: Rising Stars, Legal
Times, Mar. 18, 1985, p.1. ("Epstein has gained a
certain amount of disfavor among some conservatives
because they think he favors judicial activism.").
In a typically superficial passage in his book,
consisting of one and one-half pages, Epstein asserts
that his theory does not "depend upon a belief in
judicial activism in cases of economic liberties,"
because the consequences of his theory "are
necessary implications derived from the constitutional
text and the underlying theory of the state that it
embodies." Epstein, supra Ch.1,note 2, at
30—31. As explained above, Epstein’s theory
most certainly is not a necessary implication of the
constitutional text. What "theory of the state"
the text embodies, in turn, is a matter of serious
scholarly debate, utterly ignored by Epstein, who
inexplicably argues just pages before this assertion that
constitutional terms should not be interpreted with
reference to their purposes or the values served by them.
44 The most famous
explication of this political process theory of judicial
review is John Hart Ely’s Democracy and Distrust
(1982)
To CHAPTER 3: The Origins of
the Takings Project
To Table of Contents for The
Takings Project: Using Federal Courts
To Attack Community and Environmental Protections
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