Regulatory Takings and the 14th Amendment:

Tomorrow I will teach Chicago, Burlington & Quincy Railroad Co. v. Chicago, in which the Supreme Court first held that the Fourteenth Amendment requires states to pay just compensation when private property is taken for public use. While sometimes identified as the first case in which the Supreme Court "incorporated" a provision of the Bill of Rights against the states, there is no mention of the Fifth Amendment or the Takings Clause. Rather, Justice Harlan's opinion for the Court explicitly rests its legal conclusion on the due process requirement of the Fourteenth Amendment. It is only later that the Court expressly incorporates the Takings Clause, and further finds that some regulations -- those that go "too far" in Justice Holmes immortal words -- may trigger the compensation requirement.

If one assumes that the Court's holding in Chicago, Burlington & Quincy Railroad Co. v. Chicago is correct, the next question is whether the substantive protection afforded property rights under the Fourteenth Amendment is the same as that under the Fifth Amendment. That is, if the due process clause (or, perhaps, the Privileges or Immunities Clause) bars the taking of private property for public use without just compensation, is the meaning of this prohibition the same? Should we assume that the understanding of this prohibition in 1791 was the same as in 1868? If, for instance, we don't believe that the Fifth Amendment's takings clause required compensation for regulatory takings, does this preclude the recognition of such a requirement under the Fourteenth?

USD law professor Michael Rappaport has an interesting new paper on SSRN exploring some of these questions, "Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, But the Fourteenth Amendment May." Here is the abstract:

This article explores the widely disputed issue of whether Takings Clause protects against regulatory takings, offering a novel and intermediate solution. Critics of the regulatory takings doctrine have argued that the original meaning of the Fifth Amendment Takings Clause does not cover regulatory takings. They have quickly moved from this claim to the conclusion that the incorporated Takings Clause under the Fourteenth Amendment also does not cover regulatory takings.

In this article, I accept the claim that the Fifth Amendment Takings Clause does not cover regulatory takings, but then explore the possibility that the incorporated Takings Clause does cover such takings. Applying Akhil Amar's theory of incorporation, I argue that there are strong reasons, based on history, structure, and purpose, to conclude that the Takings Clause had a different meaning under the Fourteenth Amendment. Amar argues that the Bill of Rights was dominated by republican ideas, but that the Fourteenth Amendment was founded on more liberal notions intended to protect individual rights. This would suggest that a broad reading of the Takings Clause would further the principles underlying the Fourteenth Amendment.

Moreover, that some state courts had come to apply takings principles to regulatory and other nonphysical takings in the period between the enactment of the Bill of Rights and the Fourteenth Amendment provides additional support for the possibility that the Fourteenth Amendment enactors would have understood it to apply to regulatory takings. While the paper does not attempt to prove that the Fourteenth Amendment Takings Clause applies to regulatory takings, leaving that task to others, it argues that critics of regulatory takings doctrine should no longer simply assume that the Constitution's original meaning does not apply to state regulatory takings.

I should note that one could make a similar argument with regard to the "public use requirement" of the Takings Clause. That is, even if one does not believe that the Fifth Amendment Takings Clause imposed an independent restriction on the purposes for which property was taken by the federal government (because, among other things, such limitations were imposed by the enumeration of limited federal powers), there may be reasons to believe that the Fourteenth Amendment does.