Substantive due process resurrected through the takings clause: Nollan, Dolan, and Ehrlich.
Author | Sullivan, Edward J. |
Position | Colloquium on Dolan: The Takings Clause Doctrine of the Supreme Court and the Federal Circuit |
As a practitioner in the planning law field, I have been asked to deal with the practical effects of Dolan v. City of Tigard(1) on local planning practice. That question is laden with speculation. Dolan is the latest in a series of cases from our Supreme Court which tend to be hostile to regulation, sympathetic to property owners, and skeptical of non-traditional land use techniques. The case cannot be viewed in isolation, nor limited to its facts. Lawyers and academics are called on not only to analyze Dolan in particular, but also to review the future of land use regulation in general as portended by Dolan.
Dolan represents a resurrection of the substantive due process line of cases which had been largely defunct since the 1930s. That resurrection is not under the Due Process Clause(2) (for that would require direct confrontation with settled case law), but rather through an interesting reading of the Takings Clause of the Fifth Amendment,(3) as applied through the Fourteenth Amendment.(4) A more sophisticated form of Lochner v. New York(5) is upon us and, in combination with the predominance of a certain ideology in the judiciary, results in the same difficulties presented in the Lochner era. The ideology is hostile to regulation and uses the convenient instrumentality of vaguely worded tests to make value judgments on the necessity and wisdom of legislation. This paper will briefly touch upon the line of substantive due process cases, takings cases, and the impact of the revisionist view of the Takings Clause on planning law.
Most students of American legal history are familiar with substantive due process, which began in the late 1880s and was largely finished by 1940. The era was characterized by growth, expansion, imperialism, chauvinism, social Darwinism, and a laissez faire view of economics and government. Lawyers and judges were shaped by these and other forces. The last part of that era witnessed a sharp expansion in federal involvement with domestic matters. This governmental activism contrasted sharply with federal absence from domestic affairs which marked the late nineteenth century and early twentieth century, beginning with the withdrawal of federal troops from the post-Civil War South. It was a time when hard work was seen as the key to success, Horatio Alger was a national icon, and people were cynical about Congress and government in general.
During this period, much of the focus on the limits of government arose out of challenges to state regulation. Before the Civil War, there were few federal constitutional limits on the states. It was only following the Civil War with the Slaughter-House Cases,(6) that the Court attempted to discern the meaning behind those broad phrases of the Fourteenth Amendment--"privileges and immunities," "equal protection," and "due process"--and limits began to emerge. Creative lawyers used these clauses as a battering ram for their clients, who were generally not the poor and dispossessed. Their arguments supported the dominant ideologic al paradigm of the individual and his (but not her) natural rights. While that paradigm did acknowledge the theoretical equality of the races, it was far easier to discuss the theoretical basis of the freedom to contract among unequals than it was to explain how separate but equal facilities operated.
Mugler v. Kansas(7) is often seen as marking the beginning of the substantive due process line of cases. In upholding state prohibition against the property claims of a brewery owner, the Court declared its willingness to review the legitimacy of state actions taken under the police power. The Court's test in Mugler required "a real and substantial relation" between the prohibition on the manufacture of alcohol and the public...
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