Recent Workshops

The Federalist Society's 15th Annual National Lawyers Convention

November 15th - 17th, 2001; Mayflower Hotel, Washington, D.C.

Remarks by CRC's Executive Director Doug Kendall, speaking on the topic
"Property Rights Protection: Judicial Activism or a Return to First Principles?"

That said, it strikes me that by including me on this panel, the Section has made the debate this morning far less interesting than it could be. You will not be surprised to find out that I think that recent takings jurisprudence is judicial activism. After all, I make my living defending states and local governments in takings cases and I believe that the health, safety and environmental protections that form a main target of takings cases are among the hallmark legislative achievements of the Twentieth Century.

A far more interesting debate would pit Professors Kmiec and Ely and Dr. Pilon against Judge Robert Bork, who openly supports Professor Richard Epstein's goal of repealing "much of the twentieth century legislation" but nonetheless criticizes Epstein's proposed regulatory takings revolutions as "not plausibly related to the original understanding of the takings clause."

Or perhaps my esteemed co-panelists should be debating Justice Scalia, who admitted, perhaps too candidly in Lucas, that prior to the Supreme Court's opinion in Pennsylvania Coal v. Mahon, "it was generally thought the Takings Clause reached only a 'direct appropriation' of property or the 'practical ouster of the owner's possession.'" Justice Scalia later reiterates in Lucas that "early constitutional theorists did not believe that the Takings Clause embraced regulation of property at all."

Certainly, if my co-panelists are serious in contending that expansive regulatory takings rulings do not constitute judicial activism, they should be talking to Clint Bolick and his colleagues at the Institute for Justice who are pressing expansive notions of the Takings Clause and view their role as convincing conservatives that "conservative judicial activism is neither an oxymoron nor a bad idea."

But alas, I (along with Peter Byrne) was invited to take the "takings is judicial activism" side of this debate and I accepted that task. Rather than bemoan my selection any further, I will get to the point: the so-called property rights movement is advocating blatant, improper judicial activism that contravenes the text of the Fifth Amendment and the clear understanding of the framers. Judges like Antonin Scalia on the Supreme Court and Jay Plager on the Court of Appeals for the Federal Circuit that are advocating and adopting expansive readings of the clause are doing the very things the Federalist Society says it opposes: they are making the law up as they go along, they are trampling on federalism, they are acting as judicial imperialists, using their power on the bench to make social policy.

What's the proof of this? Well let's start with the text of the Takings Clause: "Nor shall private property be taken for public use without just compensation." What does that mean? I think take private property means expropriate i.e. when the government takes land or personal property through an exercise of eminent domain. I think it's plausible to read the clause to include regulatory restrictions that are so severe that they are the functional equivalent of an expropriation.

I think Professor Epstein undermines his credibility when he argues that the plain meaning of the text of the Constitution means that compensation must be paid whenever the government, and I quote "diminishes the rights of the owner in any fashion . . . no matter how small the alteration." Take doesn't mean diminish, and it never has. There is simply no way to justify Professor Epstein's conclusion as flowing from the text of the constitution.

Now, you may fairly be saying who cares what Kendall thinks, what about the Framers? Good question. The answer is that the Framers, including James Madison, the author of the Takings Clause, also thought the clause was about expropriations, not regulatory impositions. Historians have demonstrated this both through exhaustive reviews of Madison's papers and through analysis of the regulatory impositions in place at the time of the drafting of the Constitution. No one, even Madison, thought that the Takings Clause would impact the scores of regulations in place at the time that regulated the use and, in many cases, diminished the value of private property.

This original understanding is embodied in the Supreme Court's first 150 years of interpretation of the Takings Clause. For example, in 1870 in the Legal Tender Cases, the Supreme Court stated plainly:

 

The Takings Clause has always been understood as referring only to a direct appropriation,
and not to consequential injuries resulting from the exercise of lawful power * * * certainly
it would be an anomaly for us to hold an act of Congress invalid merely because we might
think its provisions harsh or unjust.

The evidence on this point is so clear that Justice Scalia was forced to acknowledge the point in Lucas and Professor Epstein who was forced to recognize that his interpretation of the Takings Clause "does not take into account the historical intentions of any of the parties who drafted or signed the constitution."

Finally, I want to turn to the most commonly employed historical justification for an expansive regulatory takings doctrine. The argument goes something like this: The Framers cared a lot about private property, an expansive regulatory takings doctrine protects private property, ergo, an expansive regulatory takings doctrine is consistent with the original intent of the Framers (even if, their understanding of the clause was limited to physical expropriations). This is obviously not a textualist or an originalist argument. It is argument based on political philosophy.

Even on its own terms, this argument is deeply flawed, and I'll make three observations about it as a way of response. First, as Professor Ely has written so eloquently "for all their devotion to property rights, the framers were intent to rely primarily on institutional and political arrangements to safeguard property owners." Yes, the Framers did care a lot about property, but as explained in Federalist 10, they protected property it primarily through the checks and balances set up in the legislative process. Correspondingly, there is no reason to believe that Framer's would view an expansive regulatory takings doctrine as either necessary or wise.

Second, while the Framers undoubtedly cared about protecting property rights and were influenced by philosophers such as John Locke, it is not credible to call the Constitution Lockean. The nearly unanimous view of constitutional historians is that both Lockean liberalism and civil republicanism powerfully influenced the founding generation. The Framers, in other words, cared both about protecting property and about giving the government the power to advance the common good and the rights of the community. As Benjamin Franklin put it in 1789, "Private property is a Creature of Society, and is subject to the Calls of that Society, whenever its Necessities shall require it, even to its last farthling."

Third, it is not at all clear even that John Locke or William Blackstone would support the extreme interpretation of the Takings Clause proposed by Epstein and others in the property rights movement. A portion of Blackstone's definition of property that is frequently ignored by property rights advocates' states plainly that the free use of property is subject to "the laws of the land." Similarly, Epstein was forced to correct the portion of John Locke's theory of property that opines that property rights can only be exercised "where there is enough, and as good left in common for others." This correction led Charles Fried to quip "Locke himself * * * was insufficiently Lockean" for Professor Epstein, and "Professor Epstein is moved to complete not only the text of the Constitution by reference to the Lockean spirit, but Locke's text itself.

We should not forget the Lockean influence on our founding fathers. We should protect private property. But we cannot so imbibe the Lockean spirit as to forget the limited text and original meaning of the Takings Clause. Employing the takings clause to strike down health, safety and environmental protections that present generations overwhelmingly support is judicial activism at its most dangerous and unprincipled.

I'd like to finish by pointing you to Judge Jay Plager's 1994 opinion in Florida Rock v. United States, perhaps the most activist opinion to date in takings law in which Judge Plager created, basically from whole cloth, the doctrine of "partial takings." In an article in the journal Environmental Law, Judge Plager acknowledged that this partial takings issue had not been "fully briefed and argued," and explained: sometimes you have a "problem of trying to fit the issue you want to write about to the case that is before you." He then responded to critics of his opinion with the retort, "one of the advantages of being an Article III judge with a lifetime appointment is that you never have to say you are sorry."

This in my mind goes beyond activism, and into the realm of lawlessness. This arrogance and lawlessness from the bench, I thought, was precisely what the Federalist Society was founded to combat. I would hope members of this Society will have the courage to combat judicial activism and judicial imperialism in all of its manifestations.

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