November 22, 2008
Saturday Evening Review: The Takings Clause
This year, like last, I debated whether or not to include the Fifth Amendment's "Takings Clause" in the Constitutional Law syllabus. On the one hand, the cases make fascinating reading and teaching; they connect to larger issues of constitutional rights, constitutional interpretation, and the balances between legislative (and regulatory) action and judicial role. On the other hand, the cases often rely on understandings extraneous to a constitutional law courses - property notions (e.g., ownership of airspace) or other complex arrangements ( e.g., escrow accounts maintained by lawyers and the interest such accounts earn). And this year, like last, I decided to include the takings class, although I decided to streamline the materials and cover - in one 90 minute class - both the difficult issue of regulatory takings (a bit less difficult after Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005)) and the issue of public use as demonstrated by Kelo v. City of New London, Ct., 545 US 469 (2005).
If you likewise debate whether or not to cover the takings clause, this week's scholarly review is worth considering. Jeffrey Gaba, in his article, Taking Justice and Fairness Seriously: Distributive Justice and the Takings Clause, 40 Creighton L. Rev. 569 (2007), provides one of the more compelling arguments for including the takings clause in any constitutional law course.
This is not to say Professor Gaba's explicit task is urging constitutional law professors to include the subject in our courses - - - Gaba teaches Environmental Law at SMU Dedman School of Law and doesn't mention course coverage. Rather, Gaba is arguing that the philosophical issue of distributive justice (of interest, Gaba states, to "philosophers from Aristotle to Star Trek's Mr. Spock"), is converted into an issue of constitutional law by the Court's taking clause jurisprudence.
As he states in the conclusion:
For good or ill, the concept of the Takings Clause as a principle of distributive justice arises from the Supreme Court's own statements. The Supreme Court has made and repeated the claim that the Takings Clause is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
At a minimum, the Court should be aware of the consequences that follow from such a view.
Viewed through the lens of distributive justice, takings analysis gains a sharper focus on those factors that are relevant to assessing the “fairness” of imposing costs on the few to benefit the many. The logical implication of this view is a takings test which is no more clear or certain in application than the current muddle. Additionally it expressly requires the courts to engage in social and philosophical judgments that many would say are beyond their competence (used both in the sense of judges' institutional role and their intelligence). Perhaps most significantly, it suggests a limited role for the judiciary in policing the social judgments of legislators and could confine the Takings Clause, along with the Due Process Clause, to a limited role.
Id. at 593-4 (footnotes omitted).
Gaba's article is brief, but has a very good overview of the theories of distributive justice - - - thankfully rather quickly replacing Star Trek's Mr. Spock with Nobel Laureate Amartya Sen. For the most part, he seems to assume a reader's familiarity with takings clause doctrine, using it facilely to demonstrate his theoretical points. He does, however, provide what he calls the "two dirty little secrets" of the Takings Clause:
First, there is virtually no historical evidence on the intent that lay behind the adoption of the Taking Clause in the Fifth Amendment. Second, it was not until 1922 that the Supreme Court, in what was an extraordinary act of judicial activism, claimed that the Takings Clause acted to limit government regulatory authority.
Id. at 571.
Gaba's piece does not include a discussion of Kelo and "public use," but his observations about regulatory takings jurisprudence are easily extended. Highly readable and insightful, I'm putting this article in my course notebook to remind me why the takings clause is an important, if often difficult, unit on the constitutional law syllabus.
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