SECOND-BEST ORIGINALISM AND REGULATORY TAKINGS.

• Author: Greil, John

INTRODUCTION

"[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." (1) With this characteristically gnomic claim, Justice Holmes established the Supreme Court's modern doctrine of regulatory takings. This doctrine has had a far reaching impact on the country's property owners, city planning boards, and state land use commissions. Important questions hang upon the extent to which government may regulate the use and possession of property. May a state forbid the construction of any habitable buildings on your beachfront lot? (2) May a county temporarily prohibit the rebuilding of a summer camp that lies in a floodplain? (3) May the government demand a public easement to access the ocean in exchange for a permit to demolish your bungalow and replace it with a three bedroom home? (4) The Court's answers to these questions directly impact how millions of property owners may use and develop their homes and businesses, and the Court frequently addresses these issues. Including the October 2016 Term, the Supreme Court has heard a regulatory takings case in five of its last seven terms. (5) Recently, however, the fidelity of the Court's regulatory takings doctrine to the original meaning of the Constitution has been called into question.

In last term's Murr v. Wisconsin, (6) a dissenting Justice Thomas called for the Court to reexamine the entire doctrine of regulatory takings to ensure accordance with the original public meaning of the constitutional text. (7) Justice Thomas noted that the Supreme Court "has never purported to ground [its regulatory takings] precedents in the Constitution as it was originally understood." (8) He went further to state that "it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment." (9)

This Note is an answer to Justice Thomas's call. It concludes that the original public meaning of the Privileges or Immunities Clause did protect against regulatory takings. To reach this conclusion, I apply a novel form of originalism for answering constitutional questions where the text runs out. I analyze the neighboring doctrines of nuisance and eminent domain law as they were at the enactment of the Fourteenth Amendment. The structural interactions between legislatures and courts present in nuisance and eminent domain should apply to the regulatory takings question as well. Whether a nuisance exists, or a taking is for public use, is subject to judicial review under a deferential standard. While the legislature has latitude, the court will strictly enforce the limits on that latitude. In short, regulatory takings are protected against by the original public meaning of the Fourteenth Amendment because what legislatures may not do directly, they may not do indirectly.

The second-best originalism I will apply in this Note creates an objective criterion separate from a judge's policy preferences and respects democratic decisionmaking. It will provide long term benefits by providing guardrails from which constitutional doctrine will not depart, although its normative grounding is not consequentialist. This Note follows Professor Randy Barnett and Evan Bernick in their goal of creating an originalist mode where "original meaning interpretation alone is not enough to resolve a controversy." (10) It goes further towards constraining the "spirit" prong. This Note takes part in the contemporary project of articulating a sophisticated originalism for hard cases, and applies that theory to the topic of regulatory takings.

Justice Thomas's call to reexamine the original meaning of regulatory takings is grounded in extensive debate within the legal academy. (11) Scholars have argued that regulation did (12) and did not (13) constitute a taking at the ratification of the Fifth Amendment, that state courts increasingly recognized regulatory takings between the enactment of the Fifth and Fourteenth Amendments, (14) and that the Fourteenth Amendment may protect against regulatory takings. (15) The dispute stems partially from silence on the question of regulatory takings in the drafting and ratification debates concerning the Fifth Amendment. Whether colonial-era restrictions are analogous to contemporary planning boards is also contested. Finally, scholars disagree about the extent to which the colonial experience is relevant to the Fifth Amendment as applied today, given the absence of widespread judicial review and the small role the federal government played in daily life.

The most prominent voice for applying the Fourteenth Amendment approach, and the scholar cited by Justice Thomas, is Professor Michael B. Rappaport. Professor Rappaport has suggested that the relevant original public meaning for evaluating regulatory takings is the meaning in 1868, since local land use restrictions implicate the incorporated Takings Clause. (16) The public meaning of "takings" changed from the time the Fifth Amendment was ratified to the Fourteenth Amendment's drafting. Still, Professor Rappaport concedes that it is unclear how widespread that change was. (17) It is also possible that the original public meaning of the incorporated Takings Clause contained no meaning regarding regulatory takings at all. If that is true, a judge today facing a regulatory takings question could not say he reinforced the decision of the people who ratified the amendment--there was simply no such decision for that question. Given this lack of objective criteria, such a judge risks importing policy preferences into his decision.

The possibility that the original public meaning of the incorporated Takings Clause is agnostic towards regulatory takings may require the interpreter to apply what I will call "one-step originalism" and "second-best originalism." One-step originalism determines the meaning of a provision in its originating context, which includes the legal background against which the provision was enacted, and then applies that meaning to the issue before the court. (18) When the meaning of the text is underdetermined, but a judge is still committed to enforcing the original meaning of the text, she needs to perform a "secondbest" form of originalism.

Originalist legal theorists have given great attention in recent years to how an originalist judge should answer a question where the original public meaning of the text is underdetermined. Professor Barnett describes the determination of original public meaning "interpretation" and the noninterpretative activity used when the text runs out "construction." (19) Not all originalists have accepted the interpretation-construction distinction, (20) and this Note does not wade into that debate. (21) This Note is concerned with how an originalist should act when the text runs out, and one must apply a "second-best" originalism. Originalists have proposed different methods for answering constitutional questions in the "second-best" zone. Early theorists of originalism proposed that the demonstrable public intentions of the constitutional framers should bind judges. (22) Professors John O. McGinnis and Michael B. Rappaport advocate "original methods originalism," by which judges apply "the interpretive methods that the constitutional enactors would have deemed applicable to it." (23) This Note focuses on Professor Barnett and Bernick's recent work, where they present an originalist method for underdetermined questions they call "good-faith constitutional construction." (24) Good-faith constitutional construction, Professor Barnett and Bernick claim, requires judges to adhere to the "letter and the spirit" of the constitutional provision.

This Note proposes an additional constraint for Professor Barnett and Bernick's "spirit" prong, which will greatly decrease judicial discretion and the potential for judicial overreach. When determining a provision's spirit, judges should first look to the original legal and constitutional background, found in neighboring doctrines, to see if a proxy for the spirit emerges. If that proxy sufficiently guides the court to answer the question before the court, the spirit inquiry ends there. In the context of takings, doctrines like the police power, nuisance, and economic regulation are horizontal to each other because they work as an interrelated package. Where nuisance ends, the police power ends, and the eminent domain power begins. This addendum will further constrain the discretion of judges, an essential component of originalist interpretive theories. (25)

This Note has three parts. In Part I, I contrast one-step originalism with "second-best" originalism and explain which category of constitutional question is appropriate for secondbest originalism. That category consists of meanings that were neither contested nor relied upon during the framing of a constitutional provision. In Part II, I present the doctrine and history of regulatory takings. I survey academic research to show that, as a matter of one-step originalism, while the original public meaning of the Takings Clause did not affirmatively protect against regulatory takings, the original public meaning of the clause as incorporated through the Fourteenth Amendment is unclear. Finally, in Part III, I apply second-best originalism to the doctrine of regulatory takings, assuming that one-step originalism will never conclusively determine the meaning of the incorporated Takings Clause. I look to treatises and cases contemporaneous to the ratification of the Fourteenth Amendment to argue that regulatory takings should be understood through the structural understanding of nuisance, the police power, and public use eminent domain law. These doctrines serve as proxies for the "spirit" of the Takings Clause. In doing so, I...