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Sunday, June 26, 2005
Walter Dellinger Writes . . . .
Kelo | Posted by Tom Goldstein at 04:56 PM
Much of what is wrong with Takings Clause jurisprudence seems to me to have been caused by the unwillingness of property rights advocates and sympathetic Justices to revisit the total abandonment of economic due process and their use of the Takings Clause where due process provides a better tool. Take a case like Eastern Enterprises in which massive retroactive liability is imposed on coal companies. The law may have been unconstitutional (I think it was) as a violation of the due process clause. Of the five Justices who thought it unconstitutional, only Justice Kennedy was willing to say it violated economic substantive due process. The other four in the majority were terrified by coming anywhere near "Lochner." So they invoked the technical sounding Takings Clause. This is essentially the same clumsy move William O. Douglas made in Griswold. Since he and most of his colleagues in the majority were unwilling to condemn the Connecticut Birth Control ban as a violation of liberty without due process for fear of sounding like Lochner, Douglas rolls out the Third Amendment etc. Like Kennedy in Eastern Enterprises, John Marshall Harlan is the only Justice who will treat the issue as one of substantive due process -- and he writes a better opinion as as result.
The same fear of revisiting Lochner has led to much of the misguided "regulatory" Takings jurisprudence where that clause is used instead of due process I don't study this area, so I don't really know which of the governmental acts challenged as regulatory Takings I would think were unconstitutional as violations of substantive due process and which not. But I am sure that is the right framework for analysis, not the Takings Clause.
When the Takings Clause is sent in to do the work of Due Process, it is the wrong tool for the job. Most often it is the Just Compensation element that renders the Takings Clause inapposite to the issue before the Court. That clause of the Fifth Amendment (better called the Just Compensation Clause) is violated when and only when the state fails to provide adequate compensation to the owners of the property (assuming a public purpose, a criteria that seems particularly difficult for a court to second guess). When you have a case like Brown v. Washington Legal Foundation (which I argued on behalf of Justices of the Washington Supreme Court, who had adopted the rule using interest from lawyers trust accounts to fund legal services) this issue came up in a pristine form. Clearly the interest on the accounts was the property of the clients and (in my view, unlike some who had defended earlier attacks) it seem to me to have been "taken" by the state. But no compensation was due, because there was no loss: individually accounting for the money would exceed the money due. At argument, I was asked something along these lines: "Are you saying that if I have a piece of property that is a crummy little plot that has no value the government can come and just take it?" I responded that that was exactly what I was saying -- as far as the takings clause is concerned. If the property is worth $10 and the government pays $9 it has violated the clause. But if its worth $10 and loses all $10 in value and the government pays you $0 it has not denied Just Compensation. Whatever problems there are with the IOLTA program, the Takings clause doesn't seem the right tool. And the same is true of this term's San Remo case.
In cases like Eastern Enterprise, Justice Kennedy is willing to go right to due process -- read his majority opinion in State Farm v. Campbell (invalidating a state's award of excesssive punitive damages) and his majority opinion in Lawrence v. Texas the same term (invalidating Texas anti-gay law) and together they read like the same opinion. I think he is right both times.
For anyone interested in an explication of my view that the abandonment by many liberals economic liberty has weakened the underpinnings for the protection of personal liberty and that, correspondingly, that the refusal by many conservatives to recognize a constitutional basis for the protection of personal liberty has weakened the case for the protection of economic rights, see my Simon Lecture at the Cato Institute.
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