CHARLES M.
HAAR* and MICHAEL ALLAN WOLF **
EUCLID LIVES:
THE SURVIVAL OF PROGRESSIVE JURISPRUDENCE
115 Harv. L. Rev. 2158
(2002)
*
Professor, Harvard Law School; Distinguished Visiting Professor, University of
Miami School of Law (haar@law.harvard.edu).
**
Professor of Law and History, University of Richmond (mwolf@richmond.edu). The
authors thank Professor John Paul Jones for his insights, as well as Suzanne
Cress, Scott Crumley, and Beth Hungate-Noland, members all of the University of
Richmond Law Review, for their superb technical assistance.
The
Supreme Court's expanded use of regulatory takings is making a highly
controversial and confusing concept more difficult to apply and defend. The
Court and commentators are invited to explore a different approach -
Progressive jurisprudence, as represented by the Court's enduring opinion in
Village of Euclid v. Ambler Realty Co. This Commentary examines the
reinvigoration of the Takings Clause and, in historical and ideological terms,
discusses the Progressiveness of Euclid and of the regulatory scheme the Euclid
Court approved. Professors Haar and Wolf identify and explore five inquiries
concerning the character of regulations affecting the use, ownership, and value
of private property. The answers to these questions remain relevant (and often
outcome-determinative) in cases involving allegedly confiscatory regulations.
In the discussion of each inquiry, the authors consider how the Court's current
regulatory takings approach suffers by comparison. The authors note that it is
becoming increasingly difficult for the current Justices to shape consistent
majority opinions out of their diverse views regarding the nature and
applicability of regulatory takings. The authors urge American jurists to take
a second look at Euclid and the Euclidean inquiries as an alternative to
regulatory takings law and its unfortunate legacy of unnecessary confusion and
judicial overreaching.
[*2158] I. Introduction: Continuing Down the Wrong Path
For
seventy-five years, the United States Supreme Court has consistently maintained
the proposition that there is no fundamental constitutional right to the
speculative value of a piece of property. Officials representing even the most
modest local government may promulgate and enforce regulations that
dramatically and demonstrably reduce the value of real estate and personalty,
so long as those regulations promote the laudatory and adaptable goals of public
health, safety, morals, and general welfare. n1 This admittedly controversial [*2159]
proposition has weathered profound
political and ideological shifts in the composition of the Court and in
American legal thought from the 1920s through the turn of a new century.
Moreover, the Justices have imposed a significant burden on those private
litigants who seek vindication for the deprivation of their property
"rights." This burden involves the obligation to demonstrate that the
targeted regulation or its application is "clearly arbitrary and
unreasonable." n2 Village of Euclid v. Ambler Realty Co. n3 is the case
most closely identified with the denial of a constitutional right to
speculative value. n4 Many Court observers may be surprised to learn that this
strong endorsement of government regulatory activity occurred in the mid-1920s,
during the era of constitutional jurisprudence most closely associated with
laissez-faire and conservative judicial activism. Merely three years earlier,
Justice George Sutherland, the author of the majority opinion in Euclid, had
presented the Court's opinion in a [*2160] case that invalidated a congressional minimum wage law for women
privately employed in the District of Columbia, because the statute constituted
a violation of the constitutional principle of "liberty of contract."
n5 Indeed, Justice Sutherland was one of the legendary "Four
Horsemen" who often stood as bulwarks against government violations of
property and contract rights. n6
We
present the language and legacy of Euclid as an example of Progressive
jurisprudence. Imbued with the spirit of late nineteenth-century pragmatism and
grounded in early twentieth-century political and ideological realities,
Progressive jurisprudence is a novel and characteristically American approach
that views with great skepticism bald assertions of abstract rights.
Recent
schools of thought and ideological movements, such as critical legal studies,
law and economics, and public choice, have captured the imagination and
attention of courts and commentators over the past few decades. n7
Unfortunately, we have lost sight of a strong element of American legal thought
that has long existed and that should be rediscovered and modified for
deployment in the current debate over the nature and extent of private property
rights. In the early decades of the twentieth century, the Court began to
develop an incremental, experience-and fact-centered approach to evaluating the
legitimacy of comprehensive legislative attempts to regulate the use and
ownership of real property. n8 An America whose intellectual conversation [*2161]
was dominated by the likes of
William James, John Dewey, and Oliver Wendell Holmes, Jr., n9 had little
tolerance for the absolutist belief embodied in Blackstone's notion of a
property owner's exclusive dominion. n10 Rather, those Justices who were
interested in deferential oversight of their co-equal branches employed certain
criteria to determine which provisions would receive the judicial blessing, so
that the nation's regulatory experiment could continue.
The
rough contours of Progressive jurisprudence have been the subject of
speculation by legal historians. n11 This Commentary, invoking as its primary
focus the Court's opinion in Euclid, pulls together several relatively
unexplored strands of the Progressive legal tradition, with an emphasis on a
specific context - the use and ownership of land.
[*2162] Through the lens of Progressive jurisprudence, we present a fresh
critique of current efforts to push the Fifth Amendment's Takings Clause n12 to
and beyond its logical and sound public policy limitations. In expanding the
reach of the regulatory takings doctrine - that is, the notion that statutes,
ordinances, and regulations that do not involve a physical invasion or
appropriation can effect a violation of the Takings Clause requiring just
compensation, injunctive relief, or both - the majority of the current Court
(and the state and federal judges inspired by their renewed activism) are not
only straying from the most relevant precedent, but also moving out of step
with widely shared values about public and private realms. n13 In the area of
environmental regulation especially (but certainly not solely), lawmakers and
judges are seeking guidance as they craft measures and engage in analysis
designed to reach a fruitful balance that respects private decisionmaking
regarding current use and consumption and that supports public trustees acting
on behalf of the future. Similarly, individuals and entities in the private
sector making investment, lending, sale, and enhancement decisions regarding
land and improvements on real property need guidance and leadership from the
Court, not a series of decisions that only further muddles the line separating
valid police power regulation from illegal confiscation.
This
Commentary will explore why Euclid survives, why it ought to remain an
important component of American law, and why it offers powerful, yet
unrecognized, guidance in the regulatory takings arena. It will examine why the
principles at the heart of this 1926 decision have not, to employ a now-familiar
metaphor, been "voted off the island" [*2163] by the enemies of environmental and
conservationist regulations who challenge these measures as confiscatory and
violative of cherished private property "rights." n14 The lessons
gleaned from studying Euclid and the Progressive ideas that informed the
Court's opinion can increase our understanding of the ways in which courts and
legislatures can maintain the precarious balance between public good and
private right. In this way, Euclid - with its strong and consistent record of
acceptance over the succeeding seven and one-half decades, n15 during periods
of right then left hegemony on the Court - serves as a new lodestar. The
elements of Progressive jurisprudence we distill from the Court's language provide
crucial guidance for judges and commentators who are struggling to break out of
the regulatory takings morass yet maintain proper respect for the rights of
property owners.
The
approach outlined in this Commentary holds several advantages over the failed
doctrine of regulatory takings. Not only is the manageable and intelligible set
of Euclidean inquiries more logical, [*2164] straightforward, and internally consistent than the ever-expanding
list of questions posed by the current Justices, it is also more easily and
more fruitfully applied. More than seven decades of judicial application of
Euclid and its principles have yielded a moderate body of law that stands in
sharp contrast to the threat of potentially boundless activism typified by
malleable and subjective concepts such as "conceptual severance,"
"rough proportionality," "important sticks in the bundle,"
and "investment-backed expectations." Yet perhaps the most
significant advantage the Progressive jurisprudence of Euclid and its progeny
holds is its connection to history - not merely to the text and original intent
of the Fifth Amendment, but also to the common law whose antecedents helped
shape the development of early judicial review and whose methods and meaning
continue to inform the substance and scope of constitutional lawmaking.
Beginning
with its holding in Penn Central Transportation Co. v. New York City n16 in
1978, the Supreme Court has allowed, then encouraged, many owners to base their
challenges to regulations affecting land and other forms of private property on
the following words included in the Fifth Amendment: "nor shall private
property be taken for public use, without just compensation." n17 A
literal reading of this Takings Clause does not reveal authority either for
invalidating a regulation or for providing compensation in the absence of an
affirmative exercise of the government's (or its agent's) power of eminent
domain to "take" or "condemn" property. n18 Nor does the
history of the framing and adoption of the Fifth Amendment reveal such
authority. n19 Instead, the notion of regulatory taking derives most directly
from dictum found in the somewhat quaint opinion of Associate Justice Oliver
Wendell Holmes, Jr., in 1922's Pennsylvania Coal Co. v. Mahon: n20 "The general
rule at least is, that while property may be regulated to a [*2165]
certain extent, if regulation goes
too far it will be recognized as a taking." n21
We
say "quaint" for two reasons. First, this opinion, which opened the
door to judicial second-guessing of legislative schemes, was penned by the
Justice who had dissented so eloquently from his conservative colleagues'
overreaching in Lochner v. New York, n22 the case that, to this day, is most
closely associated with the dark side of judicial review. n23 There, Holmes
wrote:
This
case is decided upon an economic theory which a large part of the country does
not entertain. If it were a question whether I agreed with that theory, I
should desire to study it further and long before making up my mind. But I do
not conceive that to be my duty ... . [A] constitution is not intended to
embody a particular economic theory, whether of paternalism and the organic
relation of the citizen to the State or of laissez faire. It is made for people
of fundamentally differing views, and the accident of our finding certain
opinions natural and familiar or novel and even shocking ought not to conclude
our judgment upon the question whether statutes embodying them conflict with
the Constitution of the United States. n24
The
author of this defense of judicial deference should not have been surprised
that his Progressive colleague, Louis D. Brandeis, not only dissented from
Holmes's apparent about-face in Pennsylvania Coal, n25 but also voiced ex parte
concern with the latter opinion, telling Felix Frankfurter that
"heightened respect for property has been part of Holmes' growing
old." n26
The
second reason why the adjective "quaint" fits is that the majority
opinion in Pennsylvania Coal apparently had little impact on how the Court
analyzed the legitimacy of regulations affecting the use and development of
land in the years immediately following the issuance of [*2166]
the opinion. Pennsylvania Coal did
not earn even a mention in the four cases decided between 1926 and 1928 in which
landowners claimed that government officials were passing and enforcing
arbitrary and confiscatory regulations. n27 In contrast, in the 1920s and early
1930s, Justice Holmes's opinion was cited with approval by his conservative
brethren in several opinions (majority and dissenting) unrelated to land use -
opinions that we associate today with the apex of conservative judicial
activism. n28
So
much has already been written about what Holmes did and did not intend when he
opened a jurisprudential can of worms in Pennsylvania Coal with his "too
far" test. n29 Even so, many more questions are raised by this oracular
assertion: From where did Holmes derive this "general rule"? How
"general" is the rule? How can a "rule" be so
indeterminate? How far is "too far"? By "taking," does
Holmes mean a violation of the Takings Clause that requires compensation (if
requested by the property owner), or instead a deprivation that violates the
Due Process Clause? In 1922, ample precedent supported a finding in favor of the
Pennsylvania Coal Company without having to invoke (even indirectly or
metaphorically) the protections of the Takings Clause. n30
[*2167] Four years later, in Euclid, Justice Holmes joined in Justice
Sutherland's majority opinion upholding zoning, despite the challenger's
allegation that this new form of land-use regulation significantly reduced the
value of its real estate. n31 Surprisingly (but thankfully), the words and
spirit of Pennsylvania Coal were not echoed in the Court's opinion, even though
the lower court relied heavily on Justice Holmes's opinion. n32 It is telling
that District Judge Westenhaver grouped Pennsylvania Coal with Adkins v.
Children's Hospital n33 and Charles Wolff Packing Co. v. Court of Industrial
Relations, n34 two cases invalidating reform legislation that cited
Pennsylvania Coal and closely identified with conservative imprudence during
the 1920s. n35
Despite
Judge Westenhaver's opinion and considerable then-recent precedent indicating
strong judicial prejudice against regulations that burdened contract and
property rights, the Euclid majority upheld an ambitious set of land-use
controls devised by a "mere" suburb of Cleveland. n36 Today, a badly
divided Court is being presented with a multifront assault on regulations
affecting property. While many of the battles concern environmental and other
controls placed on land and buildings, n37 the modern campaign to resanctify
property rights also involves challenges to any number of statutory and
regulatory programs that have a negative economic effect on the private sector,
such as coal miner benefits, pension plans, and attorneys' trust funds. n38
Today's Court has struck down regulatory programs and [*2168] practices because of a generalized notion
that an unconstitutional "taking" has occurred - even in the absence
of formal condemnation proceedings or the destruction of private property, and
even in cases in which regulators offered a scenario by which the value of the
property would be enhanced. n39 Should this pattern continue, observers may one
day view opinions in cases such as Lucas v. South Carolina Coastal Council, n40
Nollan v. California Coastal Commission, n41 Dolan v. City of Tigard, n42
Eastern Enterprises v. Apfel, n43 and Palazzolo v. Rhode Island n44 with the same
general opprobrium as we now view Lochner and Adkins - as opinions written and
endorsed by judges who, though certainly not as callous and regressive as they
are sometimes portrayed, were responsible for provoking a backlash of judicial
restraint. n45 Rather than having their judicial creations suffer such
historical ignominy, the current Justices should shift their focus away from
the bumpy and murky path of regulatory takings and toward the Progressive
jurisprudence embodied in Euclid, a much more suitable guidepost for judicial
consideration of allegedly confiscatory government regulations. n46[*2169]
II.
Two Divided Courts
Over
the past few years, as part of a larger pattern or project that can no longer
avoid the label "activist," the Rehnquist Court has demonstrated an
increasing willingness to determine the fairness and legitimacy of regulations
and statutes that negatively affect the value and use of real and personal
property or that interfere with private property rights. The Court has reconceptualized
the Takings Clause, deploying it as a powerful new tool to neutralize a wide
range of environmental and land-use regulation and to uphold a personal liberty
- the right to own and use private property - that some Justices feel has been
severely devalued. In much the same way, the current Court has attempted to
rein in government programs that it perceives to be intrusive, if not
dangerous, and to increase the protection afforded other personal rights. In
the process, the Court has challenged decades-old understandings regarding the
Commerce Clause, the Free Exercise Clause, the Establishment Clause, state
sovereignty, privacy, criminal justice, and equal protection. n47
The
cacophony of opinions in Palazzolo and Tahoe-Sierra Preservation Council v.
Tahoe Regional Planning Agency, n48 the Court's most recent efforts to amplify
and apply the regulatory takings approach, comprises a cry for help by a badly
divided Court. n49 The Takings Clause has proved to be an unwieldy and
potentially devastating tool [*2170] for balancing private rights and public needs. More than two
decades (and several unsuccessful Supreme Court attempts) ago, one of the
authors of this Commentary observed, in language quoted in two Court opinions, that
"the attempt to distinguish "regulation' from "taking' is the
most haunting jurisprudential problem in the field of contemporary land-use law
... one that may be the lawyer's equivalent of the physicist's hunt for the
quark." n50 In the interim, our colleagues in the physical sciences have
been much more successful in their quest. n51 All that lawyers and judges have
to show for their efforts is a body of law that nearly all observers
acknowledge is hopelessly confused, with no immediate resolution in sight. n52
In
literature, indefiniteness and obscurity may - in skilled, inspired hands -
yield immeasurable gains to the patient and indulgent reader. Would Joyce and
Faulkner, for example, be embraced and studied by readers and critics to this
day had these authors crafted narratives that were more chronological,
straightforward, and, yes, obvious? Would the impact and import of Ulysses n53
and The Sound and the Fury n54 be as overwhelming had their designers not
engaged in purposeful obscurity?
Our
most skillful jurists also, on occasion, are capable of reaching creative and
analytical heights by means of intentional ambiguity. Much more often, however,
ambiguity and inconsistency result not from a conscious (or subconscious)
decision of one judicial "artist," but from the tough compromises
needed to forge a majority in a specific case before the court. Current takings
jurisprudence epitomizes this process, as judges on federal and state appellate
courts struggle to reach fragile accords regarding the meaning and implication
of a text that is itself the product of significant compromise.
[*2171] We should not be surprised that the vehicle that has served to
re-elevate private property rights is not the Due Process Clause, given the
disdain with which Justices who employed that strategy have been viewed since
the late 1930s. Unfortunately, the portion of the Fifth Amendment upon which
property rights advocates are now focusing their energies - "nor shall
private property be taken for public use, without just compensation" - is
proving as effective as its predecessor in invalidating statutes and
regulations that further the common good but negatively affect the use and
ownership of the private property of a few. The substitution of the Takings
Clause for the Due Process Clause has not in any significant way enhanced our
appreciation of when regulation is invalid or confiscatory. n55
The
use of this strategy has not been easy going for the Rehnquist Court, as
evidenced by the shakily cobbled, five-member majority opinions that are often followed
by bitter, sniping concurrences and dissents. The five Justices who have most
consistently joined together to move the Court rightward - Chief Justice
William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony
Kennedy, and Clarence Thomas, all Republican appointees - are far from
unanimous in their views concerning the role government should play in
regulating business, private property, and personal behavior. n56 Certainly, a
different Court that included a bloc of five or even six Justices unwaveringly
committed to one brand of conservatism would have produced fewer compromises
and pulled fewer punches, not only in [*2172] hot-button areas such as abortion and criminal justice, but also
in the realm of private property regulation. The two Clinton selections -
Justices Ruth Bader Ginsburg and Stephen Breyer - along with two colleagues
nominated by Republican Presidents - Justices John Paul Stevens and David
Souter - often dissent from their colleagues' attempts to readjust constitutional
law understandings that date back to the years of liberal hegemony on the
Warren Court. n57 Because the foreseeable political future holds no promise of
clear sailing for committed partisans on either the right or left, the
importance of the votes and attitudes of the Court's moderates is dramatically
increased.
Luckily,
history provides important guidance for today's Supreme Court. The Court of the
1920s featured a contentious ideological lineup. By 1922, the Taft Court
contained a core of four conservative Justices - Willis VanDevanter, James
McReynolds, George Sutherland, and Pierce Butler - who soon earned reputations
for being decidedly unfriendly to the regulation of business. n58 On the other
end of the political spectrum sat Louis D. Brandeis, a Progressive lawyer who,
though by no means an enemy of the private sector, consistently favored
statutory reforms of big business in the name of the greater good. n59 Justice
Oliver Wendell Holmes, Jr. also generally indulged the whims of legislative majorities
that passed reforms, very few of which he personally supported. For his
judicial (if not his personal) opinions, the independent-minded Brahmin
remained the hero of many Progressive activists and theorists. n60
[*2173] William Howard Taft, himself the victim of Progressive politics in
the Presidential campaign of 1912, had criticized his successor, Woodrow
Wilson, for his "latitudinarian construction of the Constitution,"
which threatened "to weaken the protection it should afford against socialistic
raids upon property rights." n61 Not surprisingly, as Chief Justice, Taft
hoped that the conservative bloc, along with moderate Justices Joseph McKenna,
Edward Sanford, and Harlan Fiske Stone (who replaced McKenna in 1925), would
enable him to shape a unified Court that would not be plagued by pesky
dissents. n62 That hope was frustrated, however, as Stone, the former Wall
Street lawyer, joined Holmes and Brandeis. As Stone's biographer, Alpheus
Thomas Mason, notes, "together the Three Musketeers fought an unceasing
battle against formalistic jurisprudence." n63
Mason
also identifies Euclid as a case in which the Taft Court majority shifted from
right to left. n64 While Mason's account of Stone's supposedly decisive role in
effecting that shift is almost certainly exaggerated, n65 the fact that
Sutherland broke from the conservative bloc, in a case alleging a serious
violation of private property protections, makes Euclid worthy of special
attention. It is our belief that the emergence of Progressive jurisprudence, at
a time when the Court was sharply divided by ideology and temperament, has
special meaning for the modern Court, especially in the wake of the fiery
October 2000 Term. n66
[*2174] What was it about the challenged regulatory scheme in Euclid that,
despite its potentially negative impact on property rights and values, made
possible its acceptance by a cross-section of the Taft Court? What was it about
the way the opinion was crafted that allowed the unusual alliance in the
majority? By studying this opinion and the legal and societal issues underlying
the dispute, we gain some important insights into the kinds of government
controls on the use and enjoyment of private property that are worthy of
respect and deference by our current Court - a Court as divided as the Taft
Court over the legitimacy and wisdom of government tampering with private
property and business activities.
III.
Five Questions the Court Should Still Ask
Euclid,
imbued as it is with Progressive jurisprudence, still serves as a useful
paradigm of the judicial craft, for today the Court is once again sharply
divided in its efforts to articulate a meaningful distinction between valid
regulations and illegal confiscations. For more than three-quarters of a
century, Euclid's logic and text, and the approach to judicial decisionmaking
the majority opinion represents, have weathered profound societal, political,
and ideological shifts on the Court and in the American polity. Euclid's
strength over the years, however, should not be taken to mean that our courts
have mined all of its value. Regardless of how well-known Euclid is to certain
courts and scholars, it has much more to offer in the basic principles it
expounds.
The
attributes of Progressive jurisprudence to which we can attribute Euclid's
"staying power" are represented by the five questions that appear
within and between the lines of Sutherland's opinion for the Court:
(1) Does the challenged regulation reflect the
elasticity and adaptability of traditional common law methodology?
(2) Was the challenged regulation crafted with
important input by experts from nonlegal fields, thus leaving the property
owner with the heavy burden of demonstrating unreasonableness?
[*2175] (3) Does the challenged regulation hold the capacity to reduce
and, at the same time, enhance individual wealth and personal rights?
(4) Is the Court being asked to affirm judicial and
popular acceptance in the "laboratory" of the states?
(5) Is the regulatory scheme fundamentally flexible,
in that it furthers a wide range of public interests and features exemption
provisions for property owners who would otherwise be asked to shoulder heavy
burdens?
These
questions, and some of the aspects of Progressiveness they reflect, are not
expressly articulated by the Court. These inquiries must be distilled from the
text, as read in its historical and ideological context. In the pages that
follow, we reset, rearrange, and reinterpret discourse that, in the opinion, is
at times expansive and at other times obfuscated by mundane details or
distracting rhetoric.
The
ensuing discussion of each question will demonstrate that this set of Euclidean
inquiries is much more appropriate, useful, and prudent than the confusing and
problematic questions spawned by Pennsylvania Coal and its numerous progeny.
Progressive jurisprudence presents to the current Court: (1) a respectful
understanding of the contextual nature of modern regulatory law, which is tied
to a notion of the common law that meaningfully responds and adapts even to profound
societal changes; (2) a model of temperate judicial lawmaking that, when
appropriate, translates into deference to the findings of qualified experts;
(3) an accurate perspective of the nature and impact of regulations affecting
private property; (4) a prudential approach that awaits and, barring serious
error, endorses the work product of state judges; and (5) a consideration of
the devices that are included in regulatory schemes to provide relief to those
property owners suffering special hardships.
A.
Does the Challenged Regulation Reflect the Elasticity and Adaptability of
Traditional Common Law Methodology?
The
line which in this field separates the legitimate from the illegitimate
assumption of power is not capable of precise delimitation. It varies with
circumstances and conditions. A regulatory zoning ordinance, which would be
clearly valid as applied to the great cities, might be clearly invalid as
applied to rural communities. In solving doubts, the maxim sic utere tuo ut
alienum non laedas, which lies at the foundation of so much of the common law
of nuisances, ordinarily will furnish a fairly helpful clew. And the law of
nuisances, likewise, may be consulted, not for the [*2176] purpose of controlling, but for the helpful
aid of its analogies in the process of ascertaining the scope of, the power.
n67
These
words appeared during a crucial transition period in American legal and
constitutional history, as statutory and administrative law began to supplant
the common law as the primary source of law governing business and private
property relationships. n68 The Progressive reform impulse and the new,
activist notion that rights and liberties were incorporated through the Due
Process Clause of the Fourteenth Amendment n69 (and thus protected from
intrusion by states and localities) brought a large number of state and local
statutory and regulatory schemes before the Court for the first time. n70 From
the late 1890s through the mid-1930s, the Justices heard hundreds of due
process and related challenges. n71
Progressive
jurisprudence evolved in the hands of judges who brought to the bench a
worldview anchored in the strong belief in the inevitability of the common law.
Not surprisingly, the Justices were eager to draw lessons and insights from the
common law in their search for a mode of evaluating the constitutional
legitimacy of the flood of new laws crafted by elected lawmakers and by
administrative officials, while taking into consideration reliance interests
and settled expectations regarding property.
The
members of the Taft Court were specially qualified to oversee this transition
in the law. The backgrounds of these Justices revealed strong links to the
common law, as well as a special agility with new, superseding sources of legal
authority originating in the legislative chamber. Like their predecessors,
these Justices were attorneys educated and engaged in practice during a period
of common law hegemony. Several Justices, including Joseph McKenna, Holmes,
William Day, Willis Van Devanter, Mahlon Pitney, John Clarke, Taft, and
Edward [*2177] Sanford, had helped
to shape and adapt the common law from the bench before their elevation to the
Supreme Court. n72
Moreover,
during this crucial transition period, several future Justices played key roles
in the new administrative state; they brought to their work on the Court
valuable experiences as elected and appointed officials with first-hand
knowledge of the growth of the regulatory state generally, and of reform
legislation and its implementation specifically. For example, the author of the
Court's opinion in Euclid, George Sutherland, had served in the United States
House of Representatives and Senate from 1901 to 1917, following four years of
service in the newly formed Utah State Senate. n73 Though he was identified
with the non-Progressive wing of the Republican Party, Sutherland at times
supported reform legislation in state and federal legislatures, including the
maximum hours legislation for miners that was upheld in Holden v. Hardy. n74
Pitney also served as a state and federal legislator. Louis Brandeis's
biography before his appointment included, of course, skillful and innovative
advocacy on behalf of reform efforts such as maximum hours legislation for
women. James McReynolds and Harlan Fiske Stone had each directed the growing
bureaucracy of the Department of Justice before their elevation to the Court.
Day served for a few months as Secretary of State during the Spanish-American
War, while Taft was Secretary of War before his election as President. n75
With
feet firmly planted in the common law tradition, yet with important practical
experience in the emerging regulatory state, the members of the Taft Court did
a masterful job of mining Anglo-American law's usable past in cases such as
Euclid. By the mid-nineteenth century, American judges had already demonstrated
their confidence in the elasticity and adaptability of many centuries-old,
judge-made concepts. n76 That is, these judges believed deeply in the crucial
role that judicial interpretation from the past plays in solving the problems
of the present, and in the ability of the common law to respond to profound
technological, economic, and demographic
[*2178] changes. Perhaps the soundest evocation of
that philosophy is found in a Massachusetts Supreme Judicial Court opinion
written by Chief Justice Lemuel Shaw, who observed that "when a new
practice or new course of business arises, the rights and duties of parties are
not without a law to govern them; the general considerations of reason, justice
and policy, which underlie the particular rules of the common law, will still
apply, modified and adapted, by the same considerations, to the new
circumstances." n77 There may be new inventions, such as steamboats and
railroads, Shaw continued, "yet the principles which govern the rights and
duties of carriers of passengers, and also those which regulate the rights and
duties of carriers of goods, and of the owners of goods carried, have a deep
and established foundation in the common law, subject only to such
modifications as new circumstances may render necessary and mutually
beneficial." n78 Before the dawn of the "age of statutes," n79
common law judges such as Chief Justice Shaw were unabashedly confident that
common law rules could be molded to govern modern conditions without violating
"the general considerations of reason, justice and policy, which
underlie" those very rules.
More
than fifty years later, in defense of a federal postal savings-bank bill, a
Republican senator articulated Shaw-like optimism concerning the adaptability
of federal constitutional law to rapidly changing societal and legal
conditions: "While it is true that the Constitution continues to speak
with its original words and meaning, their scope and application continually
broaden so as to include new conditions, instrumentalities, and
activities." n80 That senator was George Sutherland, who, as a Supreme
Court Justice, was not daunted by the spate of land-use regulation that
preceded and foreshadowed the litigation in Euclid. Sixteen years later, that
opinion would echo the Senator's ideas and actual phrases:
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
half a 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. In a changing world, it is impossible that it should be otherwise.
But although a degree of elasticity is thus imparted, not to the meaning, but
to the application of constitutional principles, statutes and ordinances,
which, after giving due weight to the [*2179] new conditions, are found clearly not to conform to the
Constitution, of course, must fall. n81
Sutherland
and several other members of the Taft Court brought a new perspective to the
work of the Court, indeed to American jurisprudence. It was only natural that
they should look to the common law for guidance and support - for "a
fairly helpful clew" and "the helpful aid of its analogies" - as
they exercised their role as the ultimate interpreters of the Constitution.
In
the specific context faced by the Euclid Court, private and public nuisance law
at the time did not mandate the separation of uses that planners deemed
incompatible, such as apartment houses and single-family, detached dwellings.
n82 If, therefore, the Justices had relied on common law precedent "for
the purpose of controlling ... the [police] power," they would have
declared zoning invalid. n83 Instead, what Sutherland drew from nuisance law -
the "helpful clew" - was its contextual nature, its rejection of
absolutism and abstraction:
The
question whether the power exists to forbid the erection of a building of a
particular kind or for a particular use, like the question whether a particular
thing is a nuisance, is to be determined, not by an abstract consideration of
the building or of the thing considered apart, but by considering it in
connection with the circumstances and the locality. n84
Five
members of the Rehnquist Court crossed over Sutherland's line in Lucas v. South
Carolina Coastal Council: n85 they employed the common law of nuisance not
merely to ascertain, but to control the scope of the police power. That is, the
Court used nuisance law not only for informative purposes, but for determinative
purposes as well. After finding that the passage of the Beachfront Management
Act effected a total taking of Lucas's two parcels, the Court held:
A
law or decree with such an effect must ... do no more than duplicate the result
that could have been achieved in the courts - by adjacent landowners (or other
uniquely affected persons) under the State's law of private nuisance, or by the
State under its complementary power to abate nuisances that affect the public
generally, or otherwise. n86
In
other words, under the regulatory takings approach, today the Court asks,
"Is the landowner conducting or planning to conduct a nuisance?" If
the answer to this question is "no," and the regulation [*2180]
deprives the landowner of "all
economically viable use," n87 the Court concludes that a violation of the
Takings Clause has occurred.
We
can understand how using age-old common law doctrines to measure the validity
of legislative and administrative abuse would appeal to several of the Justices
on today's Court. First, in the seven decades that separated Euclid from Lucas,
there was a profound change in the prevailing political milieu. In the 1920s,
Progressive judges remained enthusiastic about reform legislation, and even
conservative jurists such as Sutherland and Taft could see significant public
benefits in some social and economic regulation. n88 Today, there is widespread
skepticism concerning the ability of government to solve society's ills. This
skepticism, unlike the laissez-faire musings of a hundred years ago, grows out
of decades of dissatisfaction and frustration with federal and state
bureaucracies whose expanse and influence were unimagined before the New Deal
and World War II. Four members of the Rehnquist Court were appointed or
elevated by Ronald Reagan - a President who stated in his First Inaugural
Address that "government is not the solution to our problem; government is
the problem," n89 and who later that same day ordered "a strict
freeze on the hiring of Federal civilian employees to be applied across the
board in the executive branch." n90 Likewise, Reagan's Republican and
Democratic successors, responsible for all but one of the other appointments to
the Court, took pride in their successful efforts to shrink the federal
government and reduce regulation. n91 Their appointees, like those of [*2181]
Reagan, are struggling with the
difficult task of establishing a restrained yet responsive version of judicial
review.
The
second reason today's Justices are more likely than their predecessors to
utilize traditional common law rules in defining the boundaries of police (and
regulatory) power relates to a perception that these rules - when compared with
modern statutes, regulations, and ordinances - are relatively fixed and are
closer to timeless principles of law than are the more ephemeral products of
political vagaries. Thus, it is not Chief Justice Shaw's notion of a flexible,
responsive, and adaptable common law that the Justices who made up the Lucas
majority find so appealing. No, the tone and content of Shaw's words too
closely resemble the rhetoric of jurists who speak of an
"evolutionary" Constitution, a notion that textualists such as Scalia
find highly objectionable. n92
The
members of the Euclid majority recognized that the world was moving very fast -
socially, technologically, and economically - and that they could therefore not
predict what factual and legal situations might lead to unfairness and
injustice in the future. These legal arbiters were poised on the banks of a
torrent of new facts and realities: profound demographic shifts occasioned by
millions of new immigrants from southern and eastern Europe; newly configured
political and ideological relationships marked by the growing acceptance of
third parties; scientific inventions that accelerated dramatically the flow of
people, culture, and information; and the repercussions of the nation's recent
mobilization for and involvement in a world war. n93 Owing in large part to the
inappropriateness of, and their impatience with, certitude in such a world, the
Euclid Court accorded elected officials a presumption of correctness. For
underlying this feeling of uncertainty was a fundamental recognition that this
was a democracy, as [*2182] expressed most noticeably by the will of the popularly elected
legislature. The judiciary's place was at the boundaries of public policy
debates, not at the center, and its role was to check the occasional abuses of
the other branches.
B.
Was the Challenged Regulation Crafted with Important Input by Experts from
Nonlegal Fields, thus Leaving the Property Owner with the Heavy Burden of
Demonstrating Unreasonableness?
The
matter of zoning has received much attention at the hands of commissions and
experts, and the results of their investigations have been set forth in
comprehensive reports. These reports, which bear every evidence of painstaking
consideration, concur in the view that the segregation of residential,
business, and industrial buildings will make it easier to provide fire
apparatus suitable for the character and intensity of the development in each
section; that it will increase the safety and security of home life; greatly
tend to prevent street accidents, especially to children, by reducing the
traffic and resulting confusion in residential sections; decrease noise and
other conditions which produce or intensify nervous disorders; preserve a more
favorable environment in which to rear children, etc... .
If
these reasons, thus summarized, do not demonstrate the wisdom or sound policy
in all respects of those restrictions which we have indicated as pertinent to
the inquiry, at least, the reasons are sufficiently cogent to preclude us from
saying, as it must be said before the ordinance can be declared
unconstitutional, that such provisions are clearly arbitrary and unreasonable,
having no substantial relation to the public health, safety, morals, or general
welfare. n94
The
Progressive Era witnessed the triumph of American professionalism, a movement
that, beginning in the 1870s, had recast the nation's educational and economic
landscape. n95 Urban planners - like lawyers, physicians, architects,
university professors, social workers, and other professionals - focused their
attention on establishing a national organization, developing specialized
curricula, producing a code of ethics, and, of course, practicing their skills
for what they believed was the betterment of society. The professional,
according to a leading historian on the subject, "excavated nature for its
principles, its theoretical rules, thus transcending mechanical procedures,
individual cases, miscellaneous facts, technical information, and instrumental
applications." n96 Notables such as Frederick Jackson Turner
(history), [*2183] Oliver Wendell
Holmes, Jr. (law), and Jane Addams (social work), "attempted to define a
total coherent system of necessary knowledge within a precise territory, to
control the intrinsic relationships of their subject by making it a scholarly
as well as an applied science, to root social existence in the inner needs and
possibilities of documentable worldly processes." n97 One aspect of
Progressive jurisprudence, as represented by Euclid, was appropriate, though
certainly not total, deference to the expertise and special knowledge of this
new breed of professionals.
Zoning
was the product of two key professional groups: planners and lawyers. Combining
their efforts, these groups drafted and implemented zoning ordinances in
communities throughout the nation. n98 Officials in the Republican
administrations of Warren Harding and Calvin Coolidge played important
facilitative roles in the American zoning story, as Secretary Herbert Hoover's
Department of Commerce developed and circulated the very popular Standard State
Zoning Enabling Act, along with more moderately influential model planning and
subdivision acts. n99
On
the national level, the principal conveyor of expert views on zoning was the
reformer Alfred Bettman, a prominent lawyer who contacted Chief Justice Taft
(his fellow Cincinnatian), seeking permission to submit an amicus brief in
Euclid on behalf of the National Conferences on City Planning and other
professional organizations. n100 That document not only contained key legal
arguments concerning the relationship between zoning and nuisance law and the
positive reception zoning had received in other states, but also, in
"Brandeis Brief" fashion, conveyed extralegal arguments from planners
regarding the various ways in which comprehensive zoning contributed to the
general welfare. n101
The
Court by no means yielded its review function to nonlawyers without
qualification. Instead, the Justices staked out a workable middle ground
between total deference to professional findings and de novo review. For
example, although the Euclid Court did not seek a demonstration of "wisdom
or sound policy in all respects," Justice
[*2184] Sutherland noted that the reports of
commissions and experts in support of zoning were "comprehensive,"
"bearing every evidence of painstaking consideration." n102 Ambler
Realty failed to carry the heavy burden of proving that village officials, who
acted on the advice of these careful experts, were conducting themselves in a
"clearly arbitrary and unreasonable" manner. n103
We
must keep in mind the dramatic economic and political ramifications of Euclid,
the first Court decision that approved the significant height, area, and use
restrictions comprising a comprehensive zoning ordinance. As the real estate
values recorded in the Euclid opinion indicate, zoning inevitably involved serious
negative fiscal impacts on certain landowners, frustrating potentially
lucrative development and devouring speculative investments. Any notion that
American constitutional law, even as interpreted by a Court closely identified
with an expansive interpretation of the reach of the Due Process Clause, would
protect the realization of the highest return on a real property investment
died with the Court's announcement of the decision favoring the Village of
Euclid. It is undeniable that part of the rationale for the rejection of this
position lay in the research and opinions of planners and other social
scientists.
In
contrast with the attitude of the Taft Court, majority opinions in recent
regulatory takings cases have revealed a deep skepticism regarding the motives
and abilities of planning and environmental experts. We are in the midst of a
strident rhetorical battle over the nature and extent of harms that human and
nonhuman life face on the this planet, particularly in highly industrialized
and developing regions. Experts advising the government and nongovernmental
organizations warn of global warming; decry the loss of naturally
"productive" wetlands, dunes, beach vegetation, and endangered
species of plants and animals; and seek to reduce microscopic particles in the
air and water. Quite often, politicians and right wing activists attack these
experts as "radicals" who rely on "junk science" and employ
scare tactics to achieve their extremist goals, with no concern about private property
values or rights or, for that matter, the Constitution. n104
Perhaps
the best examples of an anti-environmental bias can be found in Nollan and
Dolan. In the former case, Justice Scalia suggested [*2185] that coastal regulators, who attempted to
exact a public-beach access easement in exchange for permission to build a
larger (and more valuable) structure that was otherwise not allowed under the
prevailing land-use scheme, might have been engaging in "extortion."
n105 In Dolan, Chief Justice Rehnquist second-guessed the wisdom and efficacy
of a decision by town officials to condition the grant of permission for a
landowner to expand an existing structure upon the grant of two easements to
the public - one for a bicycle path, the other for floodplain protection. n106 In
the 1920s, even at the height of conservative judicial activism in the name of
economic liberty and property rights, the Court relied on the expert advice of
nonlegal professionals and gave government regulators the benefit of the doubt.
n107 Today, in asking a different question - "Does the challenged
regulation substantially advance legitimate governmental interests?" -
several Justices do not hesitate to reject expert-based findings.
The
Rehnquist Court, in Nollan and Dolan, has lowered the bar in two significant
ways for private property owners challenging government regulation of land.
First, the majority in Nollan asserted that governments challenged in
regulatory takings cases had traditionally been afforded less protection than
those challenged in the Equal Protection and Due Process contexts. n108 Whereas
in the latter situations, the state need only show a rational or reasonable
connection to legitimate governmental interests, the Takings Clause supposedly
demands [*2186] a demonstration of
a substantial relation to those interests. n109 Although the phrase
"substantial relation" appeared in Euclid, n110 the meaning of those
two words had changed considerably in the interim between Euclid and Nollan.
The Taft Court used "substantial" and "rational"
interchangeably when referring to the relationship between ends (public
interests) and means (regulatory tools). For example, in the Euclid opinion
itself, while Justice Sutherland employed the phrase "substantial
relation" in one section, he also referred approvingly to state court
decisions holding "that the exclusion of buildings devoted to business,
trade, etc., from residential districts, bears a rational relation to the
health and safety of the community." n111 In the 1920s, decades before the
Warren Court adopted the levels-of-scrutiny approach still in use today, a
"substantial" relation suggested reasonableness - nothing more and
nothing less. n112 Beginning in the 1970s, however, use of the word
"substantial" in Supreme Court constitutional scrutiny parlance
suggested a step up from the most minimal form of review. n113
The
second way in which property owners today are advantaged over their 1920s
counterparts is that, in certain cases alleging regulatory takings,
owner-plaintiffs no longer carry the Euclidean burden of going forward with
proof of a constitutional violation. n114 In the proper context, the Justices
in Dolan held, the government must demonstrate "rough
proportionality" between the impact of the challenger's proposed development
and any conditions (typically dedications of real property interests) placed on
the grant of permission: "No precise
[*2187] mathematical calculation is required, but the
city must make some sort of individualized determination that the required
dedication is related both in nature and extent to the impact of the proposed
development." n115 Thus, the next non-Euclidean, regulatory takings
inquiry asks, "Has the government seeking exactions proved that it has
made the necessary individualized determination?" By requiring more
closely fitting ends-means relationships and by placing extra burdens on
elected government officials to prove that their determinations are more than
reasonable in individual cases, the five majority members of the Rehnquist
Court are once again behaving in a decidedly non-Progressive fashion.
C.
Does the Challenged Regulation Hold the Capacity To Reduce and, at the Same
Time, Enhance Individual Wealth and Personal Rights?
The
lands lying between the two railroads for the entire length of the village area
and extending some distance on either side to the north and south, having an
average width of about 1,600 feet, are left open, with slight exceptions, for
industrial and all other uses. This includes the larger part of appellee's tract.
Approximately one-sixth of the area of the entire village is included in U-5
and U-6 use districts... .
...
The bill alleges that the tract of land in question is vacant and has been held
for years for the purpose of selling and developing it for industrial uses, for
which it is especially adapted, being immediately in the path of progressive
industrial development; that for such uses it has a market value of about $
10,000 per acre, but if the use be limited to residential purposes the market
value is not in excess of $ 2,500 per acre; that the first 200 feet of the
parcel back from Euclid Avenue, if unrestricted in respect of use, has a value
of $ 150 per front foot, but if limited to residential uses, and ordinary
mercantile business be excluded therefrom, its value is not in excess of $ 50
per front foot. n116
The
second paragraph quoted above illustrates the confiscatory potential of zoning
and other land-use controls, which was the primary concern of Ambler Realty and
remains the chief focus of property rights advocates seventy-five years later.
Had the Court considered the fiscal impact of zoning on only that discrete
portion of Ambler's holdings, we have little doubt that Sutherland and Taft,
and perhaps even Holmes, would have joined the three dissenters and declared
this form of regulation unconstitutional. Indeed, the Court, following the lead
of Holmes in Pennsylvania Coal, might well have dismissed the [*2188]
zoning ordinance as another example
of well-intentioned regulations that crossed the line between a proper exercise
of police power and an invalid, uncompensated taking.
It
is telling that, despite Euclid's closeness in time (1922) and in theme
(confiscatory regulation) to the successful challenge brought by the
Pennsylvania Coal Company, not once did Sutherland quote or cite that earlier
decision or invoke the notion of a regulatory taking. This was also true of
three other local land-use regulation cases from the same era: Zahn v. Board of
Public Works n117 (a 1927 decision rejecting a landowner's challenge to the Los
Angeles zoning ordinance), Gorieb v. Fox n118 (a 1927 decision upholding a
building setback ordinance), and Nectow v. City of Cambridge n119 (a 1928
zoning decision finding a constitutional violation). The Euclid majority's
failure to cite Pennsylvania Coal seems not to be an accidental oversight, as
Judge Westenhaver relied on Holmes's decision in the trial court opinions, and
counsel for Ambler, the Village, and amici in their briefs spent considerable
time discussing Pennsylvania Coal and its implications. n120
The
clue concerning why Sutherland chose a different tack from Pennsylvania Coal,
and ultimately reached a markedly different conclusion, lies in the first
paragraph quoted above. Most of Ambler's tract was classified for the most
intensive, and therefore least restrictive, uses. This meant that Ambler or its
successors in interest would be able to operate factories and other potentially
lucrative facilities on some of their properties as of right. n121 Moreover, as
the Court noted, only one-sixth of the land in the entire village received
these highly beneficial zoning classifications. By limiting the supply of
industrial parcels in a suburb of a heavily industrialized city, the village
had shifted valuable development rights to Ambler and other owners of those
parcels. Unlike Pennsylvania Coal, this was not a regulatory scheme designed to
single out one owner or class of owners for negative, confiscatory treatment.
Because of the zoning plan's facial evenhandedness and, as noted previously,
its expert-based nature, even some conservative and moderate Justices on the
Taft Court refused to pigeonhole comprehensive zoning with other arbitrary or
confiscatory regulatory schemes.
[*2189] Progressive jurisprudence, as illustrated by Euclid, as well as by
Zahn, Gorieb, and Nectow, evaluates regulations affecting private property from
a multidimensional perspective. In contrast, several members of the current
Court, relying on a memorable bit of dictum from Holmes's Pennsylvania Coal
opinion, have reduced their analysis to one basic question: "Has the
regulation gone "too far' in terms of reducing productive value, so that
the regulation amounts to an uncompensated taking?" The Justices
comprising the majority in Lucas, for example, eager to consider a fact pattern
involving total deprivation, overlooked strong indications that the affected
land retained value even after the regulation went into effect. n122 More
importantly, Justice Scalia's majority opinion in Lucas took a very
non-Euclidean view of "benefit-conferring" regulations, by focusing
almost exclusively on the benefits that accrue only to the general public or to
owners of land adjacent to that directly affected by the regulation. n123 There
was no sense that the affected landowner herself may benefit, even in a
financial way, from a comprehensive regulatory scheme that, for example,
requires subdivision developers to set aside a pond or woodlands or wetlands or
sand dunes - unspoiled places that potential home purchasers in an otherwise
overbuilt community would consider a valuable amenity.
Furthermore,
in Lucas, Justice Scalia included an aside suggesting that, contrary to the
holding in Penn Central, "it is unclear whether we would analyze the
situation as one in which the owner has been deprived of all economically
beneficial use of the burdened portion of the tract, or as one in which the
owner has suffered a mere diminution in value of the tract as a whole."
n124 While Justice Kennedy again raised
[*2190] this prospect in dictum in Palazzolo, n125
the majority in Tahoe-Sierra restated its commitment to the Penn Central
Court's focus on the "parcel as a whole." n126 Still, Justice
Thomas's terse and adamant dissent demonstrated that this debate is far from over.
n127 Other regulatory takings cases have carried this notion of narrowing the
focus to the regulation's effect on the "burdened portion" to an
extreme that endangers a wide range of regulatory activity. Endowing with legal
consequence a metaphor apparently derived from Wesley Hohfeld and Justice
Benjamin Cardozo, n128 the Court sometimes asks, "Has the [*2191]
property owner been deprived of an
essential stick in the bundle of property rights?" n129 In other words, if
the government deprives an owner of a right deemed essential, even in the
absence of a physical occupation or a reduction in value, the Takings Clause
will mandate just compensation, invalidation of the offending regulation, or
both. There is a marked difference between this elevation of abstract,
disembodied rights and the holistic and interdependent approach of Euclid and
its Progressive progeny.
D.
Is the Court Being Asked To Affirm Judicial and Popular Acceptance in the
"Laboratory" of the States?
This
question involves the validity of what is really the crux of the more recent
zoning legislation, namely, the creation and maintenance of residential
districts, from which business and trade of every sort, including hotels and
apartment houses, are excluded. Upon that question, this Court has not thus far
spoken. The decisions of the state courts are numerous and conflicting; but
those which broadly sustain the power greatly outnumber those which deny
altogether or narrowly limit it; and it is very apparent that there is a
constantly increasing tendency in the direction of the broader view. n130
By
the time Euclid reached the Supreme Court, zoning already was popular among
state and local government officials throughout the nation, had received the
active support of a federal agency, was endorsed by planners and social
scientists, and was familiar to hundreds of thousands of urban and suburban
residents. n131 The Euclid majority in effect allowed this national experiment
to continue, assuring itself that, because "the validity of the legislative
classification for zoning purposes [was] fairly debatable, the legislative
judgment must be allowed to control." n132
[*2192] In its review of state court activity, the Euclid opinion cited
more than twenty decisions (from a dozen jurisdictions) concerning the creation
of residential zoning districts; in all but a few of these cases, the courts
permitted this relatively novel land-use tool. n133 The opinion quoted
significant passages from Illinois and Louisiana high court decisions that relate
several rationales for upholding these private property restrictions: increased
urban density and congestion, traffic control, and fire and crime prevention.
n134 Following these excerpts, Justice Sutherland included several of these
grounds among the "sufficiently cogent" reasons for rejecting
Ambler's facial challenge. n135
The
Euclid Court's respectful invocation of state decisional law is an important
aspect of Progressive jurisprudence. Although the outcome of the Civil War and
the passage of the Reconstruction Amendments certainly had erased any doubt
concerning the hegemony of federal law, the national government's dominance of
the American polity is a development more accurately associated with the
opening decades of the twentieth century. Federal regulation of commerce,
transportation, banking and finance, and consumer goods mushroomed during this
era, and inevitably the Court's work entailed sorting out the nature and
limitations of this brave new legal world. n136
The
relationship between state and federal courts was altered significantly as a
result of congressional changes in 1914, 1916, and 1925. n137 For the first
time, Congress authorized Supreme Court review of state court decisions denying
federal claims or defenses. At the urging of Chief Justice Taft and his
colleagues, Congress also created the modern system of certiorari review, which
is characterized by a high degree of discretion and a severely reduced case
load for the Justices. n138 In fact, Justice Sutherland noted in testimony before
the House Judiciary Committee in December, 1924, that "the Court is
burdened by "a large number of trifling cases,' which he illustrated by
pointing to a day in which the Court heard several cases "where it was
perfectly apparent upon a mere statement of the case that there was [*2193]
nothing to do but affirm it.'"
n139 This was not a Court eager to split hairs with state judges.
What
a difference seven decades can make. In his opinion for a five-Justice majority
in 1994's Dolan, Chief Justice Rehnquist ostensibly relied on insights from
sibling jurisdictions concerning the most difficult inquiry facing the Court:
"The question for us is whether these findings are constitutionally
sufficient to justify the conditions imposed by the city on petitioner's
building permit." n140 One of the authors of this Commentary has compared
the Chief Justice's mode of analysis to that employed by Goldilocks, the famous
fairy-tale protagonist. Rehnquist "rejects the two extremes: those state
courts that take a "too soft' approach and are satisfied with regulators
who provide merely "very generalized statements as to the necessary
connection between the required dedication and the proposed development,' and
those "too hard' jurisdictions that "require a very exacting correspondence,
described as the "specific and uniquely attributable" test.'"
n141 "Just right" are those jurisdictions "occupying the
"intermediate position, requiring the municipality to show a
"reasonable relationship" between the required dedication and the
impact of the proposed development.'" n142
Chief
Justice Rehnquist and his colleagues appeared, as did the majority in Euclid,
to side with the majority of state courts that have spoken to the issue:
"We think the "reasonable relationship' test adopted by a majority of
the state courts is closer to the federal constitutional norm than either of
those previously discussed." n143 However, the Dolan majority then took a
decidedly non-Progressive turn, refusing to adopt the majority test "as
such, partly because the term "reasonable relationship' seems confusingly
similar to the term "rational basis' which describes the minimal level of
scrutiny under the Equal Protection Clause of the Fourteenth Amendment."
n144 In its stead, the Court substituted its own phrase: "rough
proportionality." n145
Does
the Dolan majority believe that today's state courts employ phrases such as
"reasonable relationship" in an uninformed or sloppy [*2194]
manner? For decades, local
government officials, often with the encouragement and support of state
lawmakers and administrators, have successfully conditioned development
approval upon the owner's dedication of land and money for public amenities
that often provide environmental and conservation benefits to the community.
n146 Is it not more logical to assume that the state judges evaluating the
validity of these programs are fully aware that they are employing
"minimal scrutiny" language and are thus signaling a highly
deferential attitude toward innovative land-use planning and environmental
regulation?
As
we have seen, state courts used "rational relation" and
"substantial relation" interchangeably in evaluating the earliest
comprehensive zoning schemes. n147 In contrast, the Rehnquist Court, first in
Nollan and then in Dolan, has attempted to replace due process and equal
protection analysis of social and economic regulation (both highly deferential
to government) with more demanding tests under the Takings Clause. In other
words, today the Court asks, "In passing and enforcing regulations
affecting private property, have government officials met the more exacting
requirements of the Takings Clause?" Motivated by skepticism regarding the
wisdom and fairness of regulations affecting the use of land, the current
Court, in abandoning the "fairly debatable" standard, has sent a
strong signal of its displeasure with the process of state and local
experimentation. This signal is inconsistent with the Rehnquist Court's strong
federalist streak, manifested in cases involving the Commerce Clause, Section 5
of the Fourteenth Amendment, and the Eleventh Amendment. n148 Nevertheless,
given the popularity of state takings statutes and the ability of state judges
to interpret their own state constitutions' eminent domain clauses broadly, the
current Court faces no real need to expand the reach of the Takings Clause.
E.
Is the Regulatory Scheme Fundamentally Flexible, in that It Furthers a Wide
Range of Public Interests and Features Exemption Provisions for Property Owners
Who Would Otherwise Be Asked To Shoulder Heavy Burdens?
The
enforcement of the ordinance is entrusted to the inspector of buildings, under
rules and regulations of the board of zoning appeals. Meetings of the board are
public, and minutes of its proceedings are kept. It is authorized to adopt
rules and regulations to carry into effect provisions [*2195] of the ordinance. Decisions of the inspector
of buildings may be appealed to the board by any person claiming to be
adversely affected by any such decision. The board is given power in specific
cases of practical difficulty or unnecessary hardship to interpret the
ordinance in harmony with its general purpose and intent, so that the public
health, safety and general welfare may be secure and substantial justice done.
n149
The
zoning scheme approved in Euclid was comprehensive in its health, safety, and
welfare goals; in its geographic reach; and in the number of uses it
authorized. The scheme, however, was not categorical. The experts and public
officials who crafted the state enabling act and the local ordinance
anticipated that, despite the best intentions of regulators, "cases of
practical difficulty or unnecessary hardship" would nonetheless occur.
Thus, Euclidean zoning ordinances typically include safety valves such as variances
and special exceptions that, if employed properly and with pragmatic common
sense, prevent confiscatory and arbitrary treatment. n150 In Justice
Sutherland's terms, achieving this balance between protecting the general
public and providing relief to burdened private property owners would yield
"substantial justice."
The
social-reform flavor of this type of land-use regulation is undeniable. Like
many other urban reforms during the opening decades of the twentieth century,
planning and zoning were largely local affairs. n151 Efforts to address the
problems of crime, corruption, and poverty in the nation's urban centers
bubbled up from the community, often after local muckrakers published alarming
exposes. n152 Although technically the power to zone resides in the state, the
overwhelming pattern was and remains for state legislatures to transfer zoning
authority to local governments by means of enabling acts. n153 Local elected
officials then adopt ordinances based on those acts, adjusting for community
needs and aspirations. By taking a decidedly deferential stand in Euclid, the
Court encouraged this bottom-up process.
This
deference, though significant, was not unlimited. First, the Court noted that,
while "the village, though physically a suburb of Cleveland, is
politically a separate municipality, with powers of its own and authority to
govern itself as it sees fit within the limits of the organic law of its
creation and the State and Federal Constitutions," there were limits to
parochial control - "cases where the general public [*2196] interest would so
far outweigh the interest of the municipality that the municipality would not
be allowed to stand in the way." n154
The
second limit to governmental control of land use and development lay in the deep
and abiding respect that all members of the Taft Court held for the American
system of private property ownership. This respect, too, is a significant part
of Progressive jurisprudence, for Progressive politicians were by no means
enemies of capitalism and private sector profit, as Gabriel Kolko revealed in
his influential study regarding the pro-business nature of many Progressive
reforms and the capture of administrative agencies by regulated concerns. n155
Justice Sutherland quoted favorably Ambler Realty's formulation of the federal
and state constitutional question before the Court: "Is the ordinance
invalid in that it violates the constitutional protection "to the right of
property in the appellee by attempted regulations under the guise of the police
power, which are unreasonable and confiscatory?'" n156 The variance and
exception provisions noted above usually guarantee that the answer to this
question in a typical zoning case will be "no."
Today's
Court overlooks the safety valves that are designed to provide relief outside
the courtroom for landowners who would otherwise allege confiscation. In Lucas,
for example, the majority proceeded to decide the case despite the fact that
(as noted in one concurring and two dissenting opinions) the offending state
Beachfront Management Act had been amended to provide a "special
permit" that probably would have provided relief to the landowner. n157 In
addition, the Court has replaced Ambler Realty's straightforward inquiry with
perplexing questions. These questions feature key phrases that require
unpacking, and contain nuances that take the Court down peripheral lines of
inquiry: Is the government interfering with reasonable investment-backed
expectations? n158 Is this a compelled, permanent, physical occupation?
n159 [*2197] Is this a
categorical taking? n160 Has the property owner been deprived of all
economically viable use? n161 Incredibly, the Court, in City of Monterey v. Del
Monte Dunes at Monterey, Ltd., n162 authorized trial courts to submit these kinds
of impermeable questions - questions that have been debated and attacked for
decades by legal academics and practitioners - to jurors. n163
IV.
Progressive Meanings
The
adjective "Progressive" fits Euclid and the village's regulatory
scheme for several reasons. First, judges who practice the sort of Progressive
jurisprudence typified by the Court's opinion in Euclid endorse the view that
legislative and administrative efforts often result in social and economic
progress for the commonweal. This belief in the positive potential of
government contrasts starkly with the less deferential posture taken by the
most conservative Justices from the late nineteenth century to this day. These
judges often invoke laissez-faire or free market notions to bolster a brand of
judicial activism grounded in serious skepticism regarding the abilities and
motives of public officials who regulate economic activities and the use of
private property.
Second,
government initiatives such as zoning are easily identified with the Progressive
era in American history. As the twentieth century opened, Progressive lawmakers
- Republicans, Democrats, and members of third parties alike - offered a wide
panoply of programs designed to reform the nation's political processes, to
improve working conditions for American laborers and living conditions for
urban denizens, to check the unbridled expansion of monopolies and trusts, and
to outlaw unfair trade practices and excessive rates. Although there were
certainly divisions within the various groups whose members identified
themselves as "Progressive," n164 one theme that permeated their
reform efforts was a strong belief that the talents of experts [*2198]
drawn from the newly
professionalized ranks - chiefly economists, political scientists, social
workers, lawyers, and teachers - should be harnessed by governments at all
levels to help individual Americans reach their full potential. n165
Third,
the word "Progressive" comprehends an approach to governance and to
judicial decisionmaking that is as separate and distinct from the New Deal
politics and jurisprudence that gained prominence in the late 1930s as it is
from the formalism that typified the judicial craft for much of the nineteenth
century. n166 While it is easy to lump together Progressives and New Dealers as
American liberals (some might throw in Populists, too, to round out the leftist
troika), it is important to understand the distinctiveness of the Court's
approach during the opening decades of the twentieth century. During the crucial
transition between a legal system dominated by the common law and one
characterized by the growth of the administrative state, judges at all levels
were challenged to calibrate their analytical tools. The principal fount of the
American rule of law did not shift abruptly or perceptibly from the courtroom
to the legislative chamber. n167
Finally,
the term "Progressive" relates to the influence certain philosophical
approaches brought to bear on much legislative and judicial lawmaking during
the early twentieth century. It is certainly easy to overemphasize the ties
between Progressivism and pragmatism. Still, it is true that certain
representative examples of Progressive jurisprudence reflect the pragmatism
explored and popularized by William James, Charles Peirce, and John Dewey much
more than the certitude of the Court's formalist predecessors or the
broad-stroked egalitarianism of their successors. n168 Perhaps the best
indication of this connection to general philosophical thought can be found in
cases, such as [*2199] Euclid, in which
the Justices endorsed experimentation with legal linedrawing by state and local
officials throughout the nation; refused to measure the validity of a
legislative or regulatory innovation by holding it up to some eternal, inerrant
standard; or viewed the Constitution as an organic body of principles that, not
unlike the common law, could be adapted to changing social, economic, and
technological conditions, while maintaining consistency and respect for
precedent.
V.
Kernel and Husk
The
lesson Holmes took from the [Civil War] can be put in a sentence. It is that
certitude leads to violence. n169
The
current reinvigoration of the Takings Clause is an awkward, internally
inconsistent effort to elevate private property rights at the expense of an
expansive range of regulations affecting the environment and the use and
ownership of property. The Court's "rediscovery" of Pennsylvania Coal
in the 1970s, after decades of relative and well-deserved oblivion, was an
unfortunate (but not irreversible) move. By asking the wrong and sometimes
unanswerable questions - inquiries inspired by Holmes's "too far"
dictum n170 - the Justices have created a disorderly and highly divisive body
of law that provides no palpable benefit to practitioners, judges, academics,
students, developers, planners, or elected officials. The Euclid legacy and the
Progressive jurisprudential questions identified in this Commentary are much
more inherently consistent, logical, and conducive to temperate and pro-ductive
debate.
The
end of the October 2000 Term brought two items of bad news to Supreme Court
observers who had hopes that the Justices would extricate themselves from the
regulatory takings entanglement. To the dismay of supporters of environmental
laws and other land-use controls, it appeared that a majority of the Rehnquist
Court would be willing to use the Takings Clause to sacrifice many kinds of
regulations for a potentially boundless notion of abstract, private property
rights.
First,
the Justices, on June 28, 2001, announced their split decision in Palazzolo v.
Rhode Island. n171 The five-member majority overlooked serious ripeness
problems, n172 and dismissed the "notice rule," which [*2200]
until that point had been a
significant barrier to realizing success in regulatory takings challenges. n173
Second,
that same day, the Justices made clear that Palazzolo was by no means the last
word on the subject. The Court agreed to hear Tahoe-Sierra Preservation
Council, Inc. v. Tahoe Regional Planning Agency, n174 a case that raised yet
another question regarding the evasive nature of regulatory takings:
"Whether the Court of Appeals properly determined that a temporary
moratorium on land development does not constitute a taking of property requiring
compensation under the Takings Clause of the United States Constitution?"
n175 This was the wrong kind of question to ask because there was no need to
use the Takings Clause to resolve the problem faced by the landowners. For too
long now the Justices have relied on unstable precedent and an inappropriate
constitutional clause when evaluating the legitimacy and wisdom of regulations
affecting all kinds of property (not just land and buildings).
The
issue facing the Justices in Tahoe-Sierra - the validity of a temporary
planning moratorium - could have comfortably fit into the Progressive
jurisprudential framework. Even a cursory review of the three Supreme Court
opinions written in Tahoe-Sierra reveals not only how confusing regulatory
takings law remains, but also how that body of law still fails to address the
key issues regarding regulations [*2201] affecting the use and value of private property. n176 The pendulum
continued to swing with the Court's announcement of April 23, 2002. Justice
Stevens, writing for a six-member majority, rejected the petitioners'
contention that the two challenged moratoria (lasting a total of thirty-two
months) triggered a per se regulatory taking under Lucas. n177 The Tahoe-Sierra
Court thus frustrated the landowners' "desire for a categorical
rule," n178 over the strong objections of the three dissenters who deemed
"tenuous" the majority's distinction between ""temporary'
and "permanent' prohibitions." n179 Rather than plodding through the
morass of regulatory takings, the Court could have more constructively [*2202]
and pragmatically addressed the
five Euclidean inquiries presented in this Commentary. n180
In
similar cases that will inevitably arise in the near future, the Justices, by
considering these appropriate inquiries, can more directly and intelligibly
strive to "do substantial justice" without abandoning their due
respect for private property rights and for the work product of the other
governmental branches.
We
close by insisting that we are not asking the Justices to choose between Holmes
and Sutherland, or between private right and public good. Judges, lawyers, and
litigants who for the past few decades have focused their considerable energies
and resources on the "too far" test are drawn to the mere husk of Holmes's
opinion, his rhetorical flair. Inside that husk is a kernel that has much in
common with the Progressive jurisprudence of Euclid.
Holmes's
surprise at the criticisms of Brandeis and other allies is understandable when
we remember that the sage "Yankee from Olympus" n181 reluctantly and
begrudgingly granted the Pennsylvania Coal Company's request for injunctive
relief (not "just compensation" in the form of damages). Of the many
qualifications of private property rights that suffuse the Court's opinion, the
most famous reads: "Government hardly could go on if to some extent values
incident to property could not be diminished without paying for every such
change in the general law. As long recognized, some values are enjoyed under an
implied limitation and must yield to the police power." n182 The
immoderate tone of the private property paeans included in the majority
opinions in Lucas, Nollan, Dolan, and Palazzolo leave little room for such
thoughtful reservations.
It
is long past time that the Justices abandon the husk of Pennsylvania Coal and
return to the kernel, to the essential ideas that government may on occasion
deprive landowners of speculative value without effecting a taking, that public
officials may sometimes find themselves outside the generous shelter provided
by the Constitution, [*2203] and that judges can protect the interests of private property
owners and the commonweal without rewriting the Constitution. The Euclidean
path of Progressive jurisprudence remains their and our guide to these ideas.
FOOTNOTES:
n1. See Vill.
of Euclid v. Ambler Realty Co., 272 U.S. 365, 384, 395, 397 (1926)
(upholding a zoning scheme despite the landowner's allegation that regulation
reduced the market value of its property by at least seventy-five percent). For
a confirmation of this essential aspect of Euclid, see Concrete Pipe & Products., Inc. v. Construction. Laborers Pension
Trust, 508 U.S. 602, 645 (1993), which declared that "our cases have
long established that mere diminution in the value of property, however
serious, is insufficient to demonstrate a taking." For a recent state
court opinion citing Euclid for this proposition, see Ventures Northwest L.P. v. State, 914 P.2d 1180 (Wash. Ct. App. 1996).
The Ventures Northwest court explained: "The mere denial of a permit for
one particular use does not establish the absence of any economically viable
use; a regulation that may impact the property's highest and best use is not a
taking." Id. at 1188 (citing Euclid, 272 U.S. at 384).
n2. Euclid,
272 U.S. at 395.
n3. 272 U.S.
365 (1926).
n4. In Euclid, the The Ambler Realty Company
challenged the Village of Euclid's zoning ordinance, which classified lands in
the Cleveland suburb by height, area, and use. While factories and other
industrial structures were permitted on part of Ambler's parcel, other portions
were restricted to residential and institutional uses. Euclid, 272 U.S. at 380-82. When Federal District Court Judge D.C.
Westenhaver agreed with Ambler that the ordinance was unconstitutional in Ambler Realty Co. v. Village of Euclid, 297
F. 307, 316 (N.D. Ohio 1924), Euclid appealed to the Supreme Court, which,
by a 6-3 vote, reversed. Euclid, 272 U.S.
at 397. Ambler was represented by Newton D. Baker, the former Cleveland
mayor who served in the Wilson Administration as Secretary of War and who
helped found the firm known today as Baker & Hostetler. Baker was a
longtime friend and supporter of Westenhaver who, in 1917, had replaced John H.
Clarke on the district court bench after Clarke was elevated to the United
States Supreme Court. When Justice Clarke resigned, he was replaced by George
Sutherland, who was to write the majority opinion in Euclid. See William M.
Randle, Professors, Reformers, Bureaucrats, and Cronies: The Players in Euclid
v. Ambler, in Zoning and the American Dream: Promises Still To Keep 31 33-35
(Charles M. Haar & Jerold S. Kayden eds., 1989) [hereinafter Zoning and the
American Dream]. Euclid's zealous counsel, James Metzenbaum, had helped draft
the village's ordinance and would later gain a national reputation as a zoning
expert. See Michael Allan Wolf, "Compelled by Conscientious Duty":
Village of Euclid v. Ambler Realty Co. as Romance, 2 J. Sup. Ct. Hist. 1997, at
88, 90; see also James Metzenbaum, The Law of Zoning (1930). For the historical
background of the Euclid litigation and discussion of its continuing
importance, see the collection of essays in Zoning and the American Dream,
supra. Professor Korngold recently observed that the "milestone Supreme
Court decision" in Euclid "has had a profound effect on American life
and jurisprudence. The decision provided the constitutional foundation for an
explosive growth in modern zoning, subdivision controls, and other governmental
land-use regulation that has transformed the organization and development of
land and communities." Gerald Korngold, The Emergence of Private Land Use
Controls in Large-Scale Subdivisions: The Companion Story to Village of Euclid
v. Ambler Realty Co., 51 Case W. Res. L.
Rev. 617, 617 (2001).
n5. Adkins v.
Children's Hosp., 261 U.S. 525, 553 (1923) (Sutherland, J.) ("We
cannot accept the doctrine that women of mature age, sui juris, require or may
be subjected to restrictions upon their liberty of contract which could not
lawfully be imposed in the case of men under similar circumstances.").
n6. The other three members of this conservative
bloc were Justices Pierce Butler, James McReynolds, and Willis Van Devanter.
See e.g., Robert Brauneis, "The Foundation of Our "Regulatory
Takings' Jurisprudence": The Myth and Meaning of Justice Holmes's Opinion
in Pennsylvania Coal Co. v. Mahon, 106
Yale L.J. 613, 679 n.303 (1996) ("Intended to evoke the Four Horsemen
of the Apocalypse, the allusion was hardly complimentary."). Professor
White has questioned placing Sutherland among the other stalwarts. See G.
Edward White, The Transformation of the Constitutional Regime of Foreign
Relations, 85 Va. L. Rev. 1, 5-6 (1999).
There are indications of ideological vacillation by Sutherland and his
colleagues in Professor Cushman's clever "expose" of the Horsemen's
hidden liberalism. See generally Barry Cushman, The Secret Lives of the Four
Horsemen, 83 Va. L. Rev. 559, 561 (1997)
("Theirs, then, is not a simple story of handmaidens of the industrial and
financial elite.").
n7. For representative works in these areas, see
Critical Legal Studies: Articles, Notes, and Book Reviews Selected from the
Pages of the Harvard Law Review (1986); Daniel A. Farber & Philip P.
Frickey, Law and Public Choice: A Critical Introduction (1991); Richard A.
Posner, Economic Analysis of Law (5th ed. 1998); Critical Legal Studies
Symposium, 36 Stan. L. Rev. 1 (1984);
Symposium on Law and Economics, 85 Colum.
L. Rev. 899 (1985); and Symposium on the Theory of Public Choice, 74 Va. L. Rev. 167 (1988).
n8. In surveying the Court's review of land-use
regulation during the first two decades of the twentieth century, Professor
Hylton discovered a decidedly pro-regulation pattern:
Almost
forgotten is the fact that during the preceding two decades the Supreme Court
heard numerous challenges to state and municipal land use regulations. In these
cases, which required the Court to define the meaning of the Fourteenth
Amendment's guarantee that one could not be deprived of property without due
process of law, the supposedly property-rights oriented Fuller and White Courts
sided with the state in almost every instance. Time after time, and with only
one dissenting vote in two decades, the Court found that the police power was
sufficiently broad to warrant restrictions on the use of land, even when they
eliminated existing uses and imposed severe economic loss on landowners. These
cases provided a strong pro-regulation backdrop against which the cases of the
1920s were decided.
Joseph
Gordon Hylton, Prelude to Euclid: The United States Supreme Court and the
Constitutionality of Land Use Regulation, 1900-1920, 3 Wash. U. J.L. & Pol'y 1, 2 (2000).
n9. For a stimulating exploration of the
intellectual culture that spawned the pragmatism of these three key figures (and
of the enigmatic Charles Peirce), see Louis Menand, The Metaphysical Club
(2001).
n10. See 2 William Blackstone, Commentaries on the
Laws of England 2 (photo. reprint, Univ. of Chi. Press 1979) (1766):
There
is nothing which so generally strikes the imagination, and engages the
affections of mankind, as the right of property; or that sole and despotic
dominion which one man claims and exercises over the external things of the
world, in total exclusion of the right of any other individual in the universe.
Professor
Rose assures us that even the author of this oft-cited passage "was
thoroughly aware of ... pervasive and serious qualifications on exclusive
dominion." Carol M. Rose, Canons of Property Talk, or, Blackstone's
Anxiety, 108 Yale L.J. 601, 603 (1998).
n11. Professor Grey places "The
Progressives" between "The Classicists" and "The Legal
Realists." See Thomas C. Grey, Modern American Legal Thought, 106 Yale L.J. 493, 495-502 (1996)
(reviewing Neil Duxbury, Patterns of American Jurisprudence (1995)). Taking its
"philosophical inspiration from American pragmatism," Progressive
jurisprudence rejected the idea of law "as an abstract and autonomous
system of norms." Id. at 497-98.
To jurists such as Holmes, Cardozo, and Pound, "judicial resistance to
democratic reforms was retrograde." Id.
at 498.
For a discussion of Cardozo's articulation of
"the working premises of Progressive jurisprudence," see Morton J.
Horwitz, The Transformation of American Law 1870-1960: The Crisis of Legal
Orthodoxy 190 (1992). See also Morton Horwitz, In What Sense Was the Warren
Court Progressive?, 4 Widener L. Symp. J. 95, 96 (1999) ("Progressives
both before and after the constitutional revolution of 1937 elevated democracy
to constitutional fundamentality.").
n12. U.S. Const. amend. V ("nor shall private
property be taken for public use, without just compensation").
n13. "Plethoric" best describes the legal
literature on regulatory takings. Commentary roughly falls into five
categories. The "classics" explore the tension between public need
and private right that continues to remain influential even in the new century.
See, e.g., Frank I. Michelman, Property, Utility, and Fairness: Comments on the
Ethical Foundations of "Just Compensation" Law, 80 Harv. L. Rev. 1165 (1967); Joseph L. Sax, Takings and the Police
Power, 74 Yale L.J. 36 (1964)
[hereinafter Sax, Police Power]; Joseph L. Sax, Takings, Private Property and
Public Rights, 81 Yale L.J. 149 (1971).
The "expansionists" envision a Takings Clause that would preclude a
wide range of police power regulation. See, e.g., Richard A. Epstein, Takings:
Private Property and the Power of Eminent Domain (1985). The
"reactions" are typically found in symposia on the heels of the
latest Court offering on the topic. One of the best is Symposium, Lucas v.
South Carolina Coastal Council, 45 Stan.
L. Rev. 1369 (1993) (featuring articles by Professors Epstein, Fisher,
Lazarus, and Sax). The "outside-the-boxes" are attempts to
reconceptualize the notion of a taking by regulation. See, e.g., Jed Rubenfeld,
Usings, 102 Yale L.J. 1077 (1993).
Finally, there are "muddlers" that explain to the reader why this
area of the law remains hopelessly confused. The best is Carol M. Rose, Mahon
Reconstructed: Why the Takings Issue Is Still a Muddle, 57 S. Cal. L. Rev. 561 (1984). Our Commentary, drawing insights and
caveats from all five categories, redirects the discussion toward a competing
constitutional vision that is more solidly grounded in the American ethos - in
generally understood notions of sound legislative, administrative, and judicial
lawmaking.
n14. The "property rights movement" has
been active in promoting takings legislation and in supporting court challenges
to allegedly confiscatory land-use and environmental regulations:
The
Pacific Legal Foundation (PLF) and a dozen other "public interest"
legal foundations located around the country represent developers
free-of-charge in takings cases. PLF and others recruit and train an army of
private practitioners to assist them in shepherding cases through the legal
system. Large and powerful lobbies such as the National Association of Home
Builders similarly devote significant resources both to litigating takings
cases and promoting "procedural reform legislation" in Congress that
would grease the wheels of takings litigation.
Douglas
T. Kendall & Charles P. Lord, The Takings Project: A Critical Analysis and
Assessment of the Progress So Far, 25
B.C. Envtl. Aff. L. Rev. 509, 511 (1998). The movement has been inspired by
the expansive regulatory takings notions of Richard Epstein. See id. at 526 ("Epstein's call has
also inspired the constitutional litigation strategy 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."). The
blueprint for that litigation strategy can be found in Epstein, supra note 13.
Professor Epstein's campaign to push the regulatory takings envelope suffered a
setback in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning
Agency, No. 00-1167, slip op. (U.S. Apr. 23, 2002). See id. at 29 & n.28
(dismissing arguments, presented in the Institute for Justice amicus brief
written by Professor Epstein, that advocated compensation for moratoria lasting
longer than one year and that urged the Court to overrule Penn Central).
For
discussions of attempts to enact state and federal takings legislation, see
Mark W. Cordes, Leapfrogging the Constitution: The Rise of State Takings
Legislation, 24 Ecology L.Q. 187 (1997);
Julian Conrad Juergensmeyer, Florida's Private Property Rights Protection Act:
Does It Inordinately Burden the Public Interest?, 48 Fla. L. Rev. 695 (1996); and Carol M. Rose, A Dozen Propositions
on Private Property, Public Rights, and the New Takings Legislation, 53 Wash. & Lee L. Rev. 265 (1996).
n15. There are recent instances of judges favorably
invoking Euclid. See, e.g., Jim Sowell Constr. Co. v. City of Coppell, No.
3:96-CV-0666-D, 2000 U.S. Dist. LEXIS
9869, at 17 (N.D. Tex. July 12, 2000) (placing the burden of proof on the
landowner plaintiffs and applying Euclid's deferential test in rejecting their
challenge to a local zoning decision); Santa
Monica Beach, Ltd. v. Superior Court, 968 P.2d 993, 1009-12 (Cal. 1999)
(Kennard, J., concurring) (concurring for three justices in a rejection of the
plaintiff's challenge to a rent control law, on grounds including Euclid's
"arbitrary and unreasonable" standard).
n16. 438 U.S.
104 (1978).
n17. U.S. Const. amend. V.
n18. The Court has scrutinized and approved
unambiguous condemnation. See, e.g., Haw.
Hous. Auth. v. Midkiff, 467 U.S. 229, 231-32 (1984) (upholding a Hawaii act
that allowed taking of title in real property from lessors and transferring it
to lessees in order to reduce the concentration of land ownership); Berman v. Parker, 348 U.S. 26, 33-35 (1954)
(holding that under the public use requirement of the Fifth Amendment,
condemned property can be resold or leased to private interests so long as the
development plan accomplishes a public purpose).
n19. "The original understanding of the Takings
Clause," Professor Treanor demonstrates convincingly, "required
compensation when the federal government physically took private property, but
not when government regulations limited the ways in which property could be
used." William Michael Treanor, The Original Understanding of the Takings
Clause and the Political Process, 95
Colum. L. Rev. 782, 782 (1995). Moreover, regulations restricting the use
of land were far from unusual during the colonial and early national periods.
See generally John F. Hart, Colonial Land Use Law and Its Significance for
Modern Takings Doctrine, 109 Harv. L.
Rev. 1252 (1996); John F. Hart, Land Use Law in the Early Republic and the
Original Meaning of the Takings Clause, 94
Nw. U. L. Rev. 1099 (2000).
n20. 260 U.S.
393 (1922).
n21. Id. at
415.
n22. 198 U.S.
45 (1905).
n23. In surveying a recent array of historical and
legal offerings on this infamous case, one reviewer noted:
Although
simply the name of the 1905 case in which the United States Supreme Court ruled
unconstitutional a New York statute limiting bakers to a 10 hour work day and a
60 hour work week, the word Lochner has for some three generations of lawyers,
jurists, and historians taken on an additional resonance, summing up in two
syllables everything wrong with a constitutional jurisprudence that could do no
right.
Gary
D. Rowe, Lochner Revisionism Revisited, 24
Law & Soc. Inquiry 221, 222 (1999). For a balanced treatment of the
relationship between Lochner and regulatory takings activism, see Molly S.
McUsic, The Ghost of Lochner: Modern Takings Doctrine and Its Impact on
Economic Legislation, 76 B.U. L. Rev. 605
(1996).
n24. Lochner,
198 U.S. at 75-76 (Holmes, J., dissenting).
n25. Pa. Coal,
260 U.S. at 416-22 (Brandeis, J., dissenting).
n26. Melvin I. Urofsky, The Brandeis-Frankfurter
Conversations, 1985 Sup. Ct. Rev. 299,
321 (quoting Frankfurter's written recollections of conversations with
Brandeis, The Louis Brandeis Papers (on file with the Harvard Law School
library)) (internal quotation marks omitted).
n27. See Nectow
v. City of Cambridge, 277 U.S. 183 (1928); Gorieb v. Fox, 274 U.S. 603 (1927); Zahn v. Bd. of Pub. Works, 274 U.S. 325 (1927); Vill. of Euclid v. Ambler Realty Co., 272 U.S.
365 (1926).
n28. See, e.g., Nebbia
v. New York, 291 U.S. 502, 552 (1934) (McReynolds, J., dissenting)
(disagreeing with the majority's refusal to invalidate price controls for milk
under the Equal Protection Clause); Home
Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 478-79 (1934)
(Sutherland, J., dissenting) (objecting to the majority's holding that
Minnesota's Mortgage Moratorium Law did not violate the Contracts Clause); Charles Wolff Packing Co. v. Court of Indus.
Relations, 262 U.S. 522, 544 (1923) (holding that a Kansas act that vested
in an Industrial Court the power to decide disputes arising in certain
industries deprived a packing house of property and liberty of contract without
due process of law); Adkins v. Children's
Hosp., 261 U.S. 525, 554-59 (1923) (holding that a minimum wage law for
women violated freedom of contract).
n29. Professor Brauneis's work is the best of
several attempts to "unveil the mystery" of Holmes's intent.
Brauneis, supra note 6, at 618. Professor Brauneis observes that, contrary to
popular belief:
Mahon
was not the "first regulatory takings case." It was not decided under
the Takings Clause. It was not the first case to hold that the Constitution
protected nonphysical property or property as value. And it was not the first
case to hold that a use restriction might be constitutional if and only if
accompanied by just compensation. Its supposed status as the progenitor of all
regulatory takings cases is the result of erroneous genealogy.
Id.
at 701.
Less convincing are those efforts to dismiss
Holmes's use of the term "taking" as mere metaphor. See, e.g., Fred F. French Investing Co. v. City of New
York, 350 N.E.2d 381, 385 (N.Y. 1976) ("The metaphor should not be
confused with the reality.").
n30. Indeed, Professor Brauneis notes that
"Holmes and the 1922 Court understood [Pennsylvania Coal] to be a Due
Process and Contract Clause case, not a Takings Clause case." Brauneis,
supra note 6, at 666.
n31. Euclid,
272 U.S. at 384-85.
n32. Ambler
Realty Co. v. Vill. of Euclid, 297 F. 307, 311-12 (N.D. Ohio 1924), rev'd, 272 U.S. 365 (1926).
n33. 261 U.S.
525 (1923) (declaring a minimum wage statute for women employees
unconstitutional), cited in Ambler Realty
Co., 297 F. at 312.
n34. 262 U.S.
522, 544 (1923) (concluding in a unanimous decision that "the
Industrial Court Act, in so far as it permits the fixing of wages in plaintiff
in error's packing house, is in conflict with the Fourteenth Amendment and
deprives it of its property and liberty of contract without due process of
law"), cited in Ambler Realty Co.,
297 F. at 312.
n35. For a sustained, though ultimately
unconvincing, effort to overcome the "conventional wisdom" concerning
these and other "Lochner era" cases, see Michael J. Phillips, The
Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the
1930s (2001).
n36. Euclid,
272 U.S. at 389.
n37. See, e.g., Tahoe-Sierra Pres. Council, Inc. v.
Tahoe Reg'l Planning Agency, No. 00-1167, slip op. (U.S. Apr. 23, 2002)
(development moratoria in Lake Tahoe basin); Palazzolo v. Rhode Island, 121 S. Ct. 2448 (2001) (wetlands
controls); City of Monterey v. Del Monte
Dunes at Monterey, Ltd., 526 U.S. 687 (1999) (development permission for
oceanfront property); Dolan v. City of
Tigard, 512 U.S. 374 (1994) (dedication of land for flood plain and
creation of a pedestrian/bicycle path); Lucas
v. S.C. Coastal Council, 505 U.S. 1003 (1992) (state Beachfront Management
Act).
n38. See, e.g., E.
Enters. v. Apfel, 524 U.S. 498 (1998) (invalidating a program that expanded
health benefits for coal mine employees and their dependents); Phillips v. Wash. Legal Found., 524 U.S. 156
(1998) (allowing a takings challenge to a Texas program that required
attorneys to place client funds in a separate account whose interest income
financed legal services for low-income persons); Concrete Pipe & Prods., Inc. v. Constr. Laborers Pension Trust, 508
U.S. 602 (1993) (holding that the Multiemployer Pension Plan Amendments Act
of 1980 did not effect a taking).
n39. In Nollan
v. California Coastal Commission, 483 U.S. 825 (1987), the Commission
granted conditional approval for the Nollans to build a newer and larger beach
house to replace the 504-square-foot bungalow on their property. See id. at 827-28. In Dolan, the City
Planning Commission conditionally granted the landowner's permit application to
increase the size of her plumbing supply store from 9,700 to 17,600 square
feet. See Dolan, 512 U.S. at 379.
There was no evidence that the "cost" of the conditions (that is, the
exactions) in any way approached the increased value attributable to the newly
granted permission to make more intensive use of the property.
n40. 505 U.S.
1003 (1992).
n41. 483 U.S.
825 (1987).
n42. 512 U.S.
374 (1994).
n43. 524 U.S.
498 (1998).
n44. 121 S.
Ct. 2448 (2001).
n45. Justice Stevens has already issued a similar
warning. See Dolan, 512 U.S. at 406-07
(Stevens, J., dissenting) ("The so-called "regulatory takings'
doctrine that the Holmes dictum kindled has an obvious kinship with the line of
substantive due process cases that Lochner exemplified. Besides having similar
ancestry, both doctrines are potentially open-ended sources of judicial power
to invalidate state economic regulations that Members of this Court view as
unwise or unfair." (footnote omitted)).
n46. Euclid is not even cited in the majority
opinions of several post-Penn Central cases in which the Court refused to
dismiss a regulatory taking challenge. See Palazzolo; City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687
(1999); Phillips v. Wash. Legal
Found., 524 U.S. 156 (1998); Babbitt
v. Youpee, 519 U.S. 234 (1997); First
English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304
(1987); Hodel v. Irving, 481 U.S. 704
(1987); Ruckelshaus v. Monsanto Co.,
467 U.S. 986 (1984); Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); Kaiser Aetna v. United States, 444 U.S. 164
(1979).
Not surprisingly, majority opinions that rejected
such challenges cited Euclid. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe
Reg'l Planning Agency, No. 00-1167, slip op. at 18 (U.S. Apr. 23, 2002); Concrete Pipe & Prods., Inc. v. Constr.
Laborers Pension Trust, 508 U.S. 602, 645 (1993); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 487 n.16
(1987); Hodel v. Va. Surface Mining
& Reclamation Ass'n, 452 U.S. 264, 275 n.17 (1981); Agins v. City of Tiburon, 447 U.S. 255,
261-62 (1980). We believe that the decision to bypass Euclid in the first
group of opinions not only contributes to the muddled state of takings law, but
also moves the Court farther away from the core values of fairness, deference,
and "substantial justice" embodied in the original and current
understandings of the Takings Clause.
n47. See, e.g., Good
News Club v. Milford Cent. Sch., 121 S. Ct. 2093, 2103-07 (2001) (finding
that permitting a religious club to use school premises does not violate the
Establishment Clause); Texas v. Cobb, 121
S. Ct. 1335, 1339 (2001) (holding that the Sixth Amendment right to counsel
is "offense specific"); Alden
v. Maine, 527 U.S. 706, 712 (1999) (affirming the dismissal of a state
defendant for violation of the Fair Labor Standards Act because the state did
not waive immunity); United States v.
Lopez, 514 U.S. 549, 567-68 (1995) (finding the Gun-Free School Zones Act
of 1990 unconstitutional because it exceeded Congress's powers under the
Commerce Clause); Rust v. Sullivan, 500
U.S. 173, 201-03 (1991) (upholding regulations forbidding the use of
federal funds for abortion counseling); Employment
Div. v. Smith, 494 U.S. 872, 882, 885-89 (1990) (holding that a state
controlled-substance law did not violate the Free Exercise Clause and rejecting
the compelling governmental interest test for generally applicable laws); City of Richmond v. J.A. Croson Co., 488 U.S.
469, 511 (1989) (finding that the city's Minority Business Utilization Plan
violated the Equal Protection Clause).
n48. No. 00-1167, slip op. (U.S. Apr. 23, 2002).
n49. In Palazzolo, the Justices were divided on the
questions of ripeness, the nature and applicability of the "reasonable
investment-backed expectations" factor, and the impact that a transfer of
the "burdened" property would have on a takings claim. For a
decisional roadmap, the reader should consult The Supreme Court, 2000 Term -
Leading Cases, 115 Harv. L. Rev. 306,
449-53 (2001). In Tahoe-Sierra, the Justices split sharply over the
denominator question, the appropriateness of per se rules, and the distinctions
between temporary and permanent prohibitions and between value and use.
n50. Charles M. Haar, Land-Use Planning: A Casebook
on the Use, Misuse, and Re-use of Urban Land 766 (3d ed. 1976), quoted in Williamson County Reg'l Planning Comm'n v.
Hamilton Bank, 473 U.S. 172, 199 n.17 (1985) and San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 649
n.15 (1981) (Brennan, J., dissenting).
n51. Indeed, in early 1995, the sixth and final
quark - known as the "top quark" - was discovered, eighteen years
after the discovery of the fifth (known as "bottom" or
"beauty"). See Antonio Regalado, With Quark Discovery, Truth Comes
Out on Top - Twice, 267 Science 1423 (1995).
n52. "Those who have theories of judicial
takings to offer deplore the "muddled,' "ad hoc,' or "chaotic'
state of takings jurisprudence." Mark Sagoff, Muddle or Muddle Through?
Takings Jurisprudence Meets the Endangered Species Act, 38 Wm. & Mary L. Rev. 825, 876 (1997); see also John A.
Humbach, A Unifying Theory for the Just-Compensation Cases: Takings, Regulation
and Public Use, 34 Rutgers L. Rev. 243,
244 (1982) (calling police power takings a "farrago of
fumblings"); Rose, supra note 13, at 562. There is nothing new about this
complaint. See Sax, Police Power, supra note 13, at 37 ("The predominant
characteristic of this area of law is a welter of confusing and apparently
incompatible results.").
n53. James Joyce, Ulysses (1922).
n54. William Faulkner, The Sound and the Fury
(1929).
n55. The intermingling of the Takings and Due
Process Clauses has a long heritage. One year before Pennsylvania Coal, Justice
Holmes suggested the possibility of a "taking without due process of
law." Block v. Hirsh, 256 U.S. 135,
156 (1921) (rejecting a constitutional challenge to a rent control
statute). More recently, in Eastern
Enterprises v. Apfel, 524 U.S. 498 (1998), four Justices found a violation
of the Takings Clause and Justice Kennedy argued that "the more
appropriate constitutional analysis arises under general due process principles
rather than under the Takings Clause." Id.
at 545 (Kennedy, J., concurring in the judgment and dissenting in part).
Some commentators urge the Court to move to a substantive due process approach
to replace a regulatory takings theory that they believe is too indulgent of
the public sector. See, e.g., Steven J. Eagle, Substantive Due Process and Regulatory
Takings: A Reappraisal, 51 Ala. L. Rev.
977, 1045 (2000) ("While the Supreme Court has been reluctant to more
fully employ the Due Process Clause in dealing with property rights issues, it
cannot provide for coherent judicial review otherwise."). Courts' and
commentators' difficulty with clarifying and applying the "substantial
relation" component of current regulatory takings law - a component some
identify with the Takings Clause's core value of "fairness" - does
not bode well for a switch between Fifth Amendment clauses. The Court would
provide greater guidance and fairness by adopting the more moderate and less
subjective factors derived from Euclid that are explored in Part III, below.
n56. For examples of atypical alliances on the
Rehnquist Court, see Rust v. Sullivan,
500 U.S. 173 (1991) (an abortion case in which Justice Souter joined Chief
Justice Rehnquist and Justices Scalia, White, and Kennedy in the majority,
while Justice O'Connor dissented); and Texas
v. Johnson, 491 U.S. 397 (1989) (a flag-burning case in which Justices
Scalia and Kennedy joined Justices Brennan, Marshall, and Blackmun in the
majority, while Justice Stevens dissented). For an account of the squabbling on
the current Court, see Tinsley E. Yarbrough, The Rehnquist Court and the
Constitution 40-46 (2000).
n57. Professor Powe closes his history of the Warren
Court by noting, "Some, but hardly all, of the Warren Court's advances
stuck." Lucas A. Powe, Jr., The Warren Court and American Politics 497
(2000). While the "anti-discrimination principle of Brown is
sacrosanct," the Warren Court's liberal views of criminal procedure,
separation of church and state, and federalism have fared less well. Id.; cf.
Morton J. Horwitz, The Warren Court and the Pursuit of Justice xii (1998)
(observing that "ultimately, the test of the historical significance of
the Warren Court is whether it managed to leave a lasting legacy of progressive
interpretations of the Constitution").
n58. For a brief discussion of the Four Horsemen and
their reputations, see supra note 6 and accompanying text.
n59. Brandeis "focused his attention on the
growing conflicts between large corporate interests on the one side and various
groups of economic outsiders, including small business, on the other. He
regarded concentrated power as overbearing and began to criticize
"bigness' in all its forms." Edward A. Purcell, Jr., Brandeis and the
Progressive Constitution: Erie, the Judicial Power, and the Politics of the
Federal Courts in Twentieth-Century America 116 (2000).
n60. Professor White painstakingly traces the growth
of Holmes's reputation as a celebrated "progressive" jurist in G.
Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self 354-411
(1993). Holmes's personal opinions, however, often conflicted with those of his
liberal devotees:
Holmes
thought that socialism was a silly doctrine. He believed that most measures on
behalf of labor were futile ... . And he regarded the ideas whose expression he
was celebrated for protecting in his judicial opinions as fatuous and immature.
His personal sympathies were entirely with the capitalists. He not only
considered them virtuous engines of social wealth; he had a kind of schoolboy's
respect for their energy and willpower.
Menand,
supra note 9, at 65.
n61. William Howard Taft, Mr. Wilson and the
Campaign, Yale Rev., Oct. 1920, at 19-20, quoted in Alpheus Thomas Mason,
Harlan Fiske Stone: Pillar of the Law 210 (1956).
n62. See Mason,
supra note 61, at 251-52; see also Robert Post, The Supreme Court Opinion
as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in
the Taft Court, 85 Minn. L. Rev. 1267,
1310 (2001) (noting that "high rates of unanimity during Taft's
tenure" were "typical of the pre-New Deal Court").
n63. Mason,
supra note 61, at 254.
n64. Id. at 252 (discussing the Euclid shift).
n65. See id. ("Under Stone's persistent
hammering, however, [Justice] Sutherland began to doubt the correctness of his
conclusion and asked for reargument."). Alfred McCormack, A Law Clerk's
Recollections, 46 Colum. L. Rev. 710, 712
(1946), the source used by Mason,
supra note 61, at 834 n.5, is suspect. See Robert C. Post, Defending the
Lifeworld: Substantive Due Process in the Taft Court Era, 78 B.U. L. Rev. 1489, 1542 n.259 (1998) (noting that Sutherland
had, in a 1925 memorandum to Chief Justice Taft, expressed support for zoning
laws); Garrett Power, Advocates at Cross-Purposes: The Briefs on Behalf of
Zoning in the Supreme Court, 2 J. Sup Ct. Hist. 79, 87 n.39 (1997) (noting
that, because Justice Sutherland was not present at the first oral argument, it
was "unlikely" he would have written the Court's opinion before
reargument).
n66. Historians, politicians, and lawyers will
debate the import of the October 2000 term for as long as judicial review and
presidential elections remain key elements of the American polity. For early
forays, see Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked
Election 2000 (2001); Richard A. Posner, Breaking the Deadlock: The 2000
Election, the Constitution, and the Courts (2001); The Vote: Bush, Gore, and
the Supreme Court (Cass R. Sunstein & Richard A. Epstein eds., 2001); Jack
M. Balkin, Bush v. Gore and the Boundary Between Law and Politics, 110 Yale L.J. 1407 (2001); Laurence H.
Tribe, eroG v. hsuB and Its Disguises: Freeing Bush v. Gore from Its Hall of
Mirrors, 115 Harv. L. Rev. 170 (2001);
Symposium, Bush v. Gore, 68 U. Chi. L.
Rev. 613 (2001); Note, Non sub Homine? A Survey and Analysis of the Legal
Resolution of Election 2000, 114 Harv. L.
Rev. 2170 (2001). Undoubtedly the volume of literature on this topic will
eventually approach that directed toward solving the regulatory takings puzzle.
n67. Vill. of
Euclid v. Ambler Realty Co., 272 U.S. 365, 387-88 (1926).
n68. See, e.g., Stephen Skowronek, Building a New
American State: The Ex-pansion of National Administrative Capacities,
1877-1920, at 249-50 (1982) (discussing the early twentieth-century movement
for "clarification of the relationship between judicial authority and
administrative authority that would facilitate the exercise of the
latter"); cf. Robert L. Rabin, Federal Regulation in Historical
Perspective, 38 Stan. L. Rev. 1189,
1216-29 (1986) (discussing the new statutory and administrative regime).
n69. The Due Process Clause of the Fourteenth
Amendment requires that no person be deprived of "life, liberty, or
property, without due process of law." U.S. Const. amend. XIV, 1.
n70. With his notion of "refined
incorporation," Professor Amar has reset the tone and substance of the
debate in this area. See generally Akhil Reed Amar, The Bill of Rights:
Cre-ation and Reconstruction (1998). For a provocative set of responses, AND a
rejoinder by Amar, see Symposium, Commentaries on Akhil Reed Amar's The Bill of
Rights: Creation and Reconstruction, 33
U. Rich. L. Rev. 289 (1999).
n71. The count of substantive due process cases
during this period varies. For an analysis of various lists, see Phillips, supra note 35, at 32-36.
n72. A helpful set of biographical essays can be
found in The Supreme Court Justices: A Biographical Dictionary (Melvin I.
Urofsky ed., 1994). See also Northwestern University, The Oyez Project, at
http://oyez.northwestern.edu (last visited May. 5, 2002).
n73. Hadley Arkes, The Return of George Sutherland:
Restoring a Juris-prudence of Natural Rights 48 (1994); Joel Francis Paschal,
Mr. Justice Su-therland: A Man Against the State 36-100 (1951).
n74. 169 U.S.
366 (1898); see also Paschal, supra note 73, at 36 (describing Senator
Sutherland's support of the legislation at issue in Holden).
n75. For biographical resources on the Justices, see
sources cited supra note 72.
n76. See, e.g., Leonard W. Levy, The Law of the
Commonwealth and Chief Justice Shaw 24 (1957) (discussing Lemuel Shaw's
constant search "for ways to adapt the old to the new, reconcile
conflicting doctrines, and so restate the law as to make it practical and
plastic" as Chief Justice of the Supreme Judicial Court of Massachusetts
from 1830 to 1860).
n77. Norway
Plains Co. v. Boston & Me. R.R., 67 Mass. (1 Gray) 263, 268 (1854).
n78. Id.
n79. See generally Guido Calabresi, A Common Law for
the Age of Statutes (1982).
n80. 45 Cong. Rec. 2616 (1910), quoted in Paschal,
supra note 73, at 65.
n81. Vill. of
Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926) (first emphasis
added).
n82. See id.
at 390 ("This question involves the validity of what is really the
crux of the more recent zoning legislation, namely, the creation and
maintenance of residential districts, from which business and trade of every
sort, including hotels and apartment houses, are excluded.").
n83. Id. at
388.
n84. Id.
n85. 505 U.S.
1003 (1992).
n86. Id. at
1029.
n87. For the Justices' first use of the puzzling
phrase "economically viable use," see Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). In Lucas,
Justice Scalia equated this deprivation with the denial of "all
economically beneficial or productive use of land." Lucas, 505 U.S. at 1015. Apparently, this does not mean the absence
of all value, however, for as the Palazzolo Court cautioned, "a State may
not evade the duty to compensate on the premise that the landowner is left with
a token interest." Palazzolo v.
Rhode Island, 121 S. Ct. 2448, 2464 (2001).
n88. For example, Chief Justice Taft joined Justice
Sutherland's majority opinions in three cases upholding zoning. See Gorieb v. Fox, 274 U.S. 603 (1927); Zahn v. Bd. of Pub. Works, 274 U.S. 325
(1927); Euclid, 272 U.S. 365.
n89. Inaugural Address of President Ronald Reagan,
Pub. Papers 1 (Jan. 20, 1981).
n90. Memorandum Directing a Federal Employee Hiring
Freeze, Pub. Papers 5 (Jan. 20, 1981).
n91. For example, in his 1991 State of the Union
Address, President Bush stated:
The
Federal Government too often treats government programs as if they are of
Washington, by Washington, and for Washington. Once established, Federal
programs seem to become immortal. It's time for a more dynamic program life
cycle. Some programs should increase. Some should decrease. Some should be
terminated. And some should be consolidated and turned over to the States.
George
Herbert Walker Bush, Address Before a Joint Session of the Congress on the
State of the Union, 1 Pub. Papers 74, 77 (Jan. 29, 1991).
President Clinton expressed similar sentiments three
years later:
Led
by the Vice President, we launched a campaign to reinvent Government. We cut
staff, cut perks, even trimmed the fleet of Federal limousines. After years of
leaders whose rhetoric attacked bureaucracy but whose action expanded it, we
will actually reduce it by 252,000 people over the next 5 years. By the time we
have finished, the Federal bureaucracy will be at its lowest point in 30 years.
William
Jefferson Clinton, Address Before a Joint Session of the Congress on the State
of the Union, 1994 Pub. Papers 126, 127 (Jan. 25, 1994).
n92. Justice Scalia has certainly not been shy in
his criticism of an organic view of the Constitution:
It
does seem to me that a constitution whose meaning changes as our notions of
what it ought to mean change is not worth a whole lot. To keep government
up-to-date with modern notions of what good government ought to be, we do not
need a constitution but only a ballot-box and a legislature.
Antonin
Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 594-95 (1989-90); see also Antonin
Scalia, A Matter of Interpretation: Federal Courts and the Law 138-40 (1997).
But cf. Lucas, 505 U.S. at 1069
(Stevens, J., dissenting) ("Arresting the development of the common law is
not only a departure from our prior decisions; it is also profoundly unwise.
The human condition is one of constant learning and evolution - both moral and
practical.").
n93. The best historical treatment of the
Progressive Era remains Richard Hofstadter, The Age of Reform: From Bryan to F.D.R.
(1955).
n94. Vill. of
Euclid v. Ambler Realty Co., 272 U.S. 365, 394-95 (1926).
n95. See Hofstadter, supra note 93, at 148-64.
n96. Burton J. Bledstein, The Culture of
Professionalism: The Middle Class and the Development of Higher Education in America
88 (1976).
n97. Id.
n98. For details on attorney James Metzenbaum's
crucial involvement in drafting, implementing, and defending the Village of
Euclid's zoning scheme, see Wolf, supra note 4, at 90-97.
n99. See Richard H. Chused, Euclid's Historical
Imagery, 51 Case W. Res. L. Rev. 597,
598-99 (2001) (discussing Hoover's activities).
n100. For Bettman's role in Euclid and in advocacy
for zoning and planning, see Randle, supra note 4, at 47-49.
n101. Motion
for Leave To File Brief, Amici Curiae and Brief on Behalf of the National
Conferences on City Planning, the National Housing Association and the
Massachusetts Federation of Town Planning Boards at 32-46, Vill. of Euclid v.
Ambler Realty Co., 272 U.S. 365 (1926) (No. 31).
n102. Euclid,
272 U.S. at 394-95 (1926) (emphasis added).
n103. Id. at
395.
n104. See, e.g., Earth Report 2000: Revisiting the
True State of the Planet (Ronald Bailey ed., 2000) (challenging
environmentalists' findings, assumptions, and policies regarding such topics as
global warming, alternative energy sources, and biological diversity); Peter
Huber, Hard Green: Saving the Environment from the Envi-ronmentalists: A
Conservative Manifesto (1999).
n105. Nollan
v. Cal. Coastal Comm'n, 483 U.S. 825, 837 (1987) (internal quotation marks
omitted).
n106. See Dolan
v. City of Tigard, 512 U.S. 374, 395-96 (1994) ("The city must make
some effort to quantify its findings in support of the dedication for the
pedestrian/bicycle pathway beyond the conclusory statement that it could offset
some of the traffic demand generated.").
n107. In Nectow
v. City of Cambridge, 277 U.S. 183 (1928), the Court, relying on Euclid,
found that the zoning ordinance at issue effected a deprivation of the
landowner's property without due process of law. The state court had enlisted
the assistance of a special master, who concluded that "no practical use
can be made of the land in question for residential purposes." Id. at 187 (internal quotation marks
omitted). Justice Sutherland, writing for a unanimous Court, adopted the
master's findings, reversing the state high court ruling. Id. at 188-89. While expert-based planning generally receives
judicial approval, Nectow and many state and lower federal cases following
Euclid's guidance have protected landowners from arbitrary and confiscatory
land-use regulations, thus demonstrating that to employ the approach of
Progressive jurisprudence is not necessarily to rubber stamp legislation.
n108. Justice Scalia tried to assure his dissenting
colleagues that "our verbal formulations in the takings field have
generally been quite different." Nollan,
483 U.S. at 834 n.3. He continued, "We have required that the
regulation "substantially advance' the "legitimate state interest'
sought to be achieved ... ." Id. (quoting Agins v. City of Tiburon, 447 U.S. 255, 260 (1980)). Justice
Brennan sharply disagreed: "The Court imposes a standard of precision for
the exercise of a State's police power that has been discredited for the better
part of this century." Id. at 842 (Brennan, J., dissenting). "It is
also by now commonplace that this Court's review of the rationality of a
State's exercise of its police power demands only that the State "could
rationally have decided' that the measure adopted might achieve the State's
objective." Id. at 843 (quoting Minnesota
v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981)).
n109. See Nollan,
483 U.S. at 834 (quoting Agins, 447
U.S. at 260) ("We have long recognized that land-use regulation does
not effect a taking if it substantially advances legitimate state interests and
does not deny an owner economically viable use of his land.") (internal
quotation marks omitted).
n110. See Vill.
of Euclid v. Ambler Realty, Co. 272 U.S. 365, 395 (1926).
n111. Id. at
391 (emphasis added).
n112. In the interim between Euclid and Nollan, it
was not unusual for state courts deciding zoning disputes to use the words
"reasonable," "rational," and "substantial"
interchangeably. See, e.g., First Nat'l
Bank of Lake Forest v. County of Lake, 130 N.E.2d 267, 277 (Ill. 1955)
("These considerations ... all point to a reasonable and substantial
relationship between the present residential classification and the legitimate
objects of the exercise of the police power ... ."); Plaza Recreational Ctr. v. Sioux City, 111 N.W.2d 758, 765 (Iowa 1961)
("substantial or rational relation between the prohibition and basic
interests of the community"); Bonan
Realty Corp. v. Young, 182 N.Y.S.2d 132, 134 (N.Y. Sup. Ct. 1958)
("bears a substantial and rational relation to the general welfare and
safety").
n113. In Craig
v. Boren, 429 U.S. 190 (1976), the Court recognized that "to withstand
constitutional challenge, previous cases established that classifications by
gender must serve important governmental objectives and must be substantially
related to achievement of those objectives." Id. at 197. For a more recent Court opinion discussing
"substantial" in relation to a government interest, see United States v. Virginia, 518 U.S. 515
(1996), which held that gender discrimination in a state military school
violated the Equal Protection Clause.
n114. Cf. Daniel R. Mandelker & A. Dan Tarlock,
Shifting the Presumption of Constitutionality in Land-Use Law, 24 Urb. Law. 1 (1992) (advocating the
transfer of the burden to the government in some instances).
n115. Dolan v.
City of Tigard, 512 U.S. 374, 391 (1994) (emphasis added).
n116. Vill. of
Euclid v. Ambler Realty Co., 272 U.S. 365, 383-84 (1926).
n117. 274 U.S.
325 (1927).
n118. 274 U.S.
603 (1927).
n119. 277 U.S.
183 (1928).
n120. See Ambler
Realty Co. v. Vill. of Euclid, 297 F. 307, 311-12 (N.D. Ohio 1924), rev'd, 272 U.S. 365 (1926); Brief on Behalf of
the Appellants at 77-78, 129, Euclid (No. 31); Brief and Argument for Appellee
at 53-54, Euclid (No. 31); Motion for Leave to File Brief, Amici Curiae and
Brief on Behalf of the National Conference on City Planning, the National
Housing Association and the Massachusetts Federation of Town Planning Boards at
11-13, Euclid (No. 31).
n121. See, e.g., Daniel R. Mandelker, Land Use Law
4.15 (4th ed. 1997).
n122. See Lucas
v. S.C. Coastal Council, 505 U.S. 1003, 1043-44 (1992) (Blackmun, J.,
dissenting) (noting that, even after passage of restrictive legislation, a
landowner could still "picnic, swim, camp in a tent, or live on the property
in a movable trailer").
n123. See Lucas,
505 U.S. at 1024-25. Professor Sax offers an alternative to the Lucas
majority's "conventional perspective of private property":
An
ecological view of property, the economy of nature, is fundamentally different.
Land is not a passive entity waiting to be transformed by its landowner. Nor is
the world comprised of distinct tracts of land, separate pieces independent of
each other. Rather, an ecological perspective views land as consisting of
systems defined by their function, not by man-made boundaries. Land is already
at work, performing important services in its unaltered state. For example,
forests regulate the global climate, marshes sustain marine fisheries, and
prairie grass holds the soil in place. Transformation diminishes the
functioning of this economy and, in fact, is at odds with it.
Joseph
L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South
Carolina Coastal Council, 45 Stan. L.
Rev. 1433, 1442 (1993).
n124. Lucas,
505 U.S. at 1016-17 n.7. Professor Michelman raised the
"denominator" problem twenty-five years before Lucas:
Is
the supposedly critical factor the size of the private loss absolutely, or
rather the size of that loss compared with some other quantity? And if, as
seems clear, a comparison of magnitudes is intended - a comparison in which,
were it fractionally expressed, the loss in value of the affected property
would compose the numerator - what value supplies the denominator? Is it the
preexisting value of the affected property, or is it the whole preexisting
wealth or income of the complainant?
Michelman,
supra note 13, at 1192. This issue is an example of what Professor Radin dubs
"conceptual severance." Margaret Jane Radin, The Liberal Conception
of Property: Cross Currents in the Jurisprudence of Takings, 88 Colum. L. Rev. 1667, 1674-78 (1988).
The Federal Circuit has probably been most ambitious
in whittling down the denominator. See, e.g., Palm Beach Isles Assocs. v. United States, 208 F.3d 1374, 1380-81 (Fed.
Cir. 2000), aff'd on reh'g, 231 F.3d
1354 (Fed. Cir. 2000); Loveladies
Harbor v. United States, 28 F.3d 1171, 1179-82 (Fed. Cir. 1994). If the
Court were to move away from Pennsylvania Coal's emphasis on a diminution of
value, it could prevent the narrowing of the constitutional inquiry to the
smallest discrete "piece" of property. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 228
F.2d 998 (9th Cir. 2000) (Kozinski, J., dissenting from denial of petition
for rehearing en banc).
n125. In his brief to the Court, Palazzolo for the
first time asserted that he had suffered a total deprivation of value in a
discrete part of his parcel (the "wetlands portions"). Palazzolo v. Rhode Island, 121 S. Ct. 2448,
2465 (2001). Justice Kennedy raised, then avoided deciding, this nagging
issue:
This
contention asks us to examine the difficult, persisting question of what is the
proper denominator in the takings fraction. Some of our cases indicate that the
extent of deprivation effected by a regulatory action is measured against the
value of the parcel as a whole; but we have at times expressed discomfort with
the logic of this rule, a sentiment echoed by some commentators. Whatever the
merits of these criticisms, we will not explore the point here. Petitioner did
not press the argument in the state courts, and the issue was not presented in
the petition for certiorari. The case comes to us on the premise that
petitioner's entire parcel [the "upland parcel" and the
"wetlands portion"] serves as the basis for his takings claim, and,
so framed, the total deprivation argument fails.
Id.
(citations omitted).
n126. Tahoe-Sierra Pres. Council, Inc. v. Tahoe
Reg'l Planning Agency, No. 00-1167, slip op. at 27 (U.S. Apr. 23, 2002).
Justice Stevens wrote for the majority: "Petitioners' "conceptual
severance' argument is unavailing because it ignores Penn Central's admonition
that in regulatory takings cases we must focus on "the parcel as a whole.'
We have consistently rejected such an approach to the "denominator'
question." Id. (quoting Penn Central
Transportation Co. v. New York City, 438 U.S. 104, 130-31 (1978)).
n127. See Tahoe-Sierra, No. 00-1167, slip op. at 1
(Thomas, J., dissenting). Joined by Justice Scalia, Justice Thomas dubbed the
Penn Central formulation a "questionable rule" and observed,
"the majority's decision to embrace the "parcel as a whole' doctrine
as settled is puzzling." Id. at 1 & n..
n128. See Henneford
v. Silas Mason Co., 300 U.S. 577, 582 (1937) (Cardozo, J.) ("The
privilege of use is only one attribute, among many, of the bundle of privileges
that make up property or ownership."); Robert J. Goldstein, Green Wood in
the Bundle of Sticks: Fitting Environmental Ethics and Ecology into Real
Property Law, 25 B.C. Envtl. Aff. L. Rev.
347, 367 n.122 (1998) (""Legal interest' or "property'
relating to the tangible object that we call land consists of a complex
aggregate of rights (or claims), privileges, powers, and immunities."
(quoting Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in
Judicial Reasoning and Other Legal Essays 96 (Walter Wheeler Cook ed., 1923))
(internal quotation marks omitted)); see also Michael A. Heller, The Tragedy of
the Anticommons: Property in the Transition from Marx to Markets, 111 Harv. L. Rev. 621, 663 (1998)
("A.M. Honore proposed a list of eleven "standard incidents' that he
claims make up private property, including the rights to exclusive possession,
personal use, and alienation.") (citing A.M. Honore, Ownership, in Oxford
Essays in Jurisprudence 107, 112-28 (A.G. Guest ed., 1961))).
n129. See, e.g., Dolan
v. City of Tigard, 512 U.S. 374, 384 (1994) (finding that requiring public
access to private land "would deprive petitioner of the right to exclude
others, "one of the most essential sticks in the bundle of rights that are
commonly characterized as property'" (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979))).
n130. Vill. of
Euclid v. Ambler Realty Co., 272 U.S. 365, 390 (1926).
n131. For the early history of zoning, see Charles
M. Haar & Michael Allan Wolf, Land-Use Planning: A Casebook on the Use,
Misuse, and Re-use of Urban Land 188-90 (4th ed. 1989); Seymour I. Toll, Zoned
American (1969); Developments in the Law - Zoning, 91 Harv. L. Rev. 1427, 1433-35 (1978).
n132. Euclid,
272 U.S. at 388.
n133. Id. at
390-93 (reviewing state court decisions on the validity of zoning).
n134. See id.
at 392-93 (quoting City of Aurora v.
Burns, 149 N.E. 784 (Ill. 1925), and State
ex rel. Civello v. City of New Orleans, 97 So. 440 (La. 1923)).
n135. Id. at 395.
n136. See Rabin, supra note 68, at 1216-29.
n137. Professor Hartnett admirably maneuvers through
the various legislative and judicial modifications of the Court's review
powers. See Edward A. Hartnett, Questioning Certiorari: Some Reflections
Seventy-Five Years After the Judges' Bill, 100
Colum. L. Rev. 1643 (2000).
n138. See id.
at 1660-62.
n139. Id. at
1689 (quoting Jurisdiction of Circuit Courts of Appeals and of the Supreme
Court of the United States: Hearing on H.R. 8206 Before the House Comm. on the
Judiciary, 68th Cong. 25 (1924) (testimony of Justice Sutherland)).
n140. Dolan v.
City of Tigard, 512 U.S. 374, 389 (1994).
n141. Michael Allan Wolf, Fruits of the
"Impenetrable Jungle": Navigating the Boundary Between Land-Use
Planning and Environmental Law, 50 Wash.
U. J. Urb. & Contemp. L. 5, 16 (1996) (alteration in original)
(footnotes omitted) (quoting Dolan, 512
U.S. at 389-90 (quoting Pioneer Trust
& Savings Bank v. Mount Prospect, 176 N.E.2d 789, 802 (Ill. 1961))).
n142. Id. at 16 (quoting Dolan, 512 U.S. at 390).
n143. Dolan,
512 U.S. at 391.
n144. Id.
n145. Id.
n146. See generally Judith Welch Wegner, Moving
Toward the Bargaining Table: Contract Zoning, Development Agreements, and the
Theoretical Foundations of Government Land Use Deals, 65 N.C. L. Rev. 957 (1987).
n147. See supra p. 2186.
n148. See William W. Buzbee & Robert A.
Schapiro, Legislative Record Review, 54
Stan. L. Rev. 87, 109-19 (2001).
n149. Vill. of
Euclid v. Ambler Realty Co., 272 U.S. 365, 383 (1926).
n150. See generally Haar & Wolf, supra note 131,
at 343-62 (discussing variances and special exceptions).
n151. For a discussion of Progressive urban reform
generally, see Hofstadter, supra note 93, at 174-86.
n152. The classic example is Lincoln Steffens, The
Shame of the Cities (1904).
n153. See, e.g., Mandelker, supra note 121,
4.15-.16.
n154. Euclid,
272 U.S. at 389-90.
n155. Gabriel Kolko, The Triumph of Conservatism: A
Reinterpretation of American History, 1900-1916, at 1-10 (1963).
n156. Euclid,
272 U.S. at 386.
n157. Lucas v.
S.C. Coastal Council, 505 U.S. 1003, 1010-11 (1992); id. at 1032 (Kennedy, J., concurring in the judgment); id. at 1041 (Blackmun, J., dissenting); id. at 1061 (Stevens, J., dissenting).
The current Court's eagerness to resolve regulatory takings questions in the
face of serious questions concerning ripeness, residual value, and the
availability of variances and exceptions stands in stark contrast to the
Justices' cautionary approach in the years preceding First English Evangelical Lutheran Church v. County of Los Angeles.,
482 U.S. 304 (1987).
n158. See, e.g., Palazzolo
v. Rhode Island, 121 S. Ct. 2448, 2457 (2001).
n159. See, e.g., Yee
v. City of Escondido, 503 U.S. 519, 530-31 (1992) (finding no "compelled
physical occupation"); Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982) (holding that
even a minor "permanent physical occupation" effects a taking).
n160. See Lucas,
505 U.S. at 1015-16 (noting two categorical takings: physical invasions and
denials of economically beneficial use).
n161. See, e.g., Agins
v. City of Tiburon, 447 U.S. 255, 260 (1980).
n162. 526 U.S.
687 (1999).
n163. The Del Monte Dunes jurors were asked to
determine the presence (or absence) of economically viable use and of the
substantial advancement of legitimate public interests. Id. at 700-01.
n164. For example, some Progressives campaigned for
the restriction of "new" immigration from southern and eastern
Europe, while others championed the nation's ability to absorb and assimilate
these newcomers. Professor Solomon contrasts the exclusionary activities of the
Immigration Restriction League with the resistance of a Brahmin minority who
still clung to a belief in the benefits of absorbing newcomers. See Barbara
Miller Solomon, Ancestors and Immi-grants: A Changing New England Tradition
122-51, 176-94 (1956).
n165. See, e.g., John F. Duffy, The FCC and the
Patent System: Progressive Ideals, Jacksonian Realism, and the Technology of
Regulation, 71 U. Colo. L. Rev. 1071,
1088 (2000) ("By the Progressive era, faith in expert commissions was
endemic ... ."); Michael Allan Wolf, The Prescience and Centrality of
Euclid v. Ambler, in Zoning and the American Dream, supra note 4, at 252, 255.
n166. See Grey, supra note 11, at 497-500.
n167. Therefore, individual judges confronted
several difficult questions concerning the judicial craft: What common law
principles undergirded new statutory schemes and on what bases could the court
conclude that those principles had been preempted? Were state and local
lawmakers entitled to the same deference as their counterparts in Congress? Did
an administrative regulation have the same import as a statute or ordinance
passed by a legislative body?
n168. According to Menand:
The
political system their philosophy was designed to support was democracy. And
democracy, as they understood it, isn't just about letting the right people
have their say; it's also about letting the wrong people have their say... .
Democracy means that everyone is equally in the game, but it also means that no
one can opt out.
Menand,
supra note 9, at 440-41.
n169. Id. at 61.
n170. Pa. Coal
Co. v. Mahon, 260 U.S. 393, 415 (1922).
n171. 121 S.
Ct. 2448 (2001).
n172. See id.
at 2473 (Ginsburg, J. dissenting). Justice Ginsburg, joined by Justices
Souter and Breyer, agreed with the Rhode Island Supreme Court that the claim
was unripe, noting that "although Palazzolo submitted several applications
to develop his property, those applications uniformly sought permission to fill
most or all of the wetlands portion of the property. None aimed to develop the
uplands." Id.
n173. The majority phrased the rule this way:
"A purchaser or a successive title holder like petitioner is deemed to
have notice of an earlier-enacted restriction and is barred from claiming that
it effects a taking." Id. at 2462.
Compare id. at 2463 ("A blanket
rule that purchasers with notice have no compensation right when a claim
becomes ripe is too blunt an instrument to accord with the duty to compensate
for what is taken."), with id. at
2471 n.6 (Stevens, J., concurring in part and dissenting in part) ("In
cases such as Nollan - in which landowners have notice of a regulation when
they purchase a piece of property but the regulatory event constituting the
taking does not occur until after they take title to the property - I would
treat the owners' notice as relevant to the evaluation of whether the
regulation goes "too far,' but not necessarily dispositive.").
n174. 216 F.3d
764 (9th Cir. 2000), rev'd. No. 00-1167, slip op. (U.S. Apr. 23, 2002).
Judge Alex Kozinski penned a strident dissent from the en banc refusal to grant
a rehearing. Not one to mince words, Judge Kozinski invited the High Court to
intercede:
The
panel does not like the Supreme Court's Takings Clause jurisprudence very much,
so it reverses First English Evangelical Lutheran Church v. County of Los
Angeles and adopts Justice Stevens's First English dissent. Because we are not
free to rewrite Supreme Court precedent, I urged our court to take this case en
banc. By voting not to rehear, we have neglected our duty and passed the burden
of correcting our mistake on to a higher authority.
Tahoe-Sierra Pres. Council,
Inc. v. Tahoe Reg'l Planning Agency, 228 F.3d 998, 999 (9th Cir. 2000) (internal citations
omitted) (Kozinski, J., dissenting from denial of petition for rehearing en
banc) (internal citations omitted).
n175. 121 S.
Ct. at 2589-90.
n176. The oral arguments before the Justices in
Tahoe-Sierra further illustrated the need for a more coherent approach and
suggested that even comprehensive zoning would be at risk should the Court
follow the regulatory takings doctrine to its "logical" conclusion.
See Transcript of Oral Argument, Tahoe-Sierra Pres. Council, Inc. v. Tahoe
Reg'l Planning Agency, 2002 U.S. TRANS LEXIS 2 (Jan. 7, 2002) (No. 00-1167).
Consider, for example, the following exchange between the Justices and counsel
for the landowners:
QUESTION: ... Now, what about your basic zoning law?
I'm going to, as a city, limit the use of this property to one house per acre.
You can't have unlimited apartments or commercial property owner. Now, for the
enactment of that, is there a taking immediately?
MR. BERGER: No, Your Honor.
QUESTION: Well, you're permanently deprived of the
use of it for commercial purposes.
MR. BERGER: Yes, Your Honor, but you are not totally
deprived of the use of it.
QUESTION: But can we get back to the basic question
that Justice Scalia asked, and Justice O'Connor asked it as well. I want your
answer. Why is it that a delay for purposes of ordinary zoning, which, let's
assume, prohibits you from any use of the property, is not a taking?
MR. BERGER: Because you are there in a process
working toward the actual development of the process, of the property, pardon
me, in contrast to being in a situation like these people are, where there is
no process for development. There is instead the desire -
QUESTION: Let's assume that the Tahoe Regional
Planning Agency thought, in good faith, that there would be some development
allowed, but they needed a year to think about it... . We know something very
valuable is going to be built, but you say it's a taking, and I don't
understand the difference between that and the regular zoning procedure.
MR. BERGER: The difference is that in the second
situation there is a conscious and total prohibition on use, and that's the
purpose of the regulation, is to prohibit the use. In the former situation,
where you're applying for a permit, the purpose of the regulation is not to
prohibit use but, in fact, to enable use.
Id. at 13-14.
n177. Tahoe-Sierra Pres. Council, Inc. v. Tahoe
Reg'l Planning Agency, No. 00-1167, slip op. at 2, 16 (U.S. Apr. 23, 2002).
n178. Id. at 16.
n179. Id. at 5 (Rehnquist, C.J., dissenting). The
Chief Justice, joined by Justices Scalia and Thomas, was also concerned with
the majority's apparent conflation of "value" and "use,"
which he deemed a departure from Lucas. Id. at 8-9.
n180. See supra pp. 2174-75.
n181. See Catherine Drinker Bowen, Yankee from
Olympus: Justice Holmes and His Family (1944).
n182. Pa. Coal
Co. v. Mahon, 260 U.S. 393, 413 (1922). Several Justices have invoked
Holmes's caveat in regulatory takings cases, quoting it verbatim. See, e.g.,
Tahoe-Sierra, No. 00-1167, slip op. at 31; Palazzolo
v. Rhode Island, 121 S. Ct. 2448, 2462 (2001); Dolan v. City of Tigard, 512 U.S. 374, 384-85 (1994); Lucas v. S.C. Coastal Council, 505 U.S.
1003, 1018 (1992); First English
Evangelical Lutheran Church v. County of L.A., 482 U.S. 304, 330 (1987)
(Stevens, J., dissenting); Keystone
Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 473 (1987); Williamson County Reg'l Planning Comm'n v.
Hamilton Bank, 473 U.S. 172, 198-99 (1985); San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 650
(1981) (Brennan, J., dissenting); Andrus
v. Allard, 444 U.S. 51, 65 (1979); Penn
Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978).