Taking Justice and Fairness Seriously: Distributive Justice and the Takings Clause

JurisdictionUnited States,Federal
CitationVol. 40
Publication year2022


Creighton Law Review

Vol. 40


In the absence of justice, what is sovereignty but organized brigandage? - St. Augustine(fn1)

The Fifth Amendment to the U.S. Constitution provides, in part, that private property shall not "be taken for public use without just compensation." This is the so-called "Takings Clause," and, since the Supreme Court's 1922 opinion in Pennsylvania Coal v. Mahon,(fn2) it has served as a limitation on government regulatory actions that go "too far" in restricting the use of property. Defining "how far is too far" is the central objective of Supreme Court takings jurisprudence, but the Court's analysis is recognized by all to be (as it is most politely phrased) "a muddle."(fn3)

Perhaps the most important reason for this "muddle" is the failure of the Court to articulate a coherent conceptual basis for the Takings Clause. A variety of themes have been advanced to describe the basis of the Takings Clause. For some, the Takings Clause represents a critical component of personal liberty that bars the government from interfering with some almost absolute right to property. For others, it is merely a codification on the government's authority to appropriate title through eminent domain.

One important theme arises from the otherwise unremarkable case of Armstrong v. United States.(fn4) In that opinion, Justice Black advanced the dogmatic conclusion that the Takings Clause "was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."(fn5) This conception of the Takings Clause has been cited in numerous cases since Armstrong. In Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency,(fn6) for example, Justice Stevens devoted much of his opinion to an analysis of whether principles of "justice and fairness" justified temporary restrictions on construction under the Takings Clause.

This conception of "justice and fairness" embodied in Armstrong raises one of the central concerns of moral philosophy - an issue that has captured the attention of philosophers from Aristotle to Star Trek's Mr. Spock - when do the needs of the many outweigh the needs of the few?(fn7) In Aristotelian terms, this is the issue of "distributive justice" or the ethical analysis of the distribution of benefits and burdens in society.(fn8)

An issue of philosophy to academics, this issue of distributive justice has now been converted by the Court into an issue of constitutional law. Although the Supreme Court, since Armstrong, has described the Takings Clause as reflecting a concern for distributive justice, it has never explained the historical or legal basis for this view. Perhaps worse, the Court has not directly addressed the consequences of incorporating principles of distributive justice into the Fifth Amendment.

The purpose of this Article is to consider some of the implications of incorporating a principle of distributive justice into the Fifth Amendment.(fn9) It begins with an analysis of the origins of Fifth Amendment regulatory takings analysis and the basis (or lack of one) for the inclusion of a principle of distributive justice. Next, it briefly discusses the concept of distributive justice reflected in the Armstrong principles of "justice and fairness." Finally, it addresses four key implications of incorporating a conception of distributive justice into the Takings Clause. First, a focus on distributive justice is a move away from an assessment of government regulation of private property based on individual "rights." Second, the traditional takings factors previously advanced by the Court can be seen in a new way if analyzed in light of principles of distributive justice. Third, a focus on distributive justice may open new sources for evaluating takings. Finally, a concern for distributive justice raises troubling questions about the legitimacy of decisions grounded, not in history or neutral principles, but in an unelected judiciary's views of principles of justice and fairness. A grounding of the Takings Clause in these ethical principles may suggest an extremely limited role for the Court in finding a regulatory taking.


Although many see the Takings Clause as a central statement of fundamental liberty, the Takings Clause has two dirty little secrets. First, there is virtually no historical evidence on the intent that lay behind the adoption of the Taking Clause in the Fifth Amendment. Second, it was not until 1922 that the Supreme Court, in what was an extraordinary act of judicial activism, claimed that the Takings Clause acted to limit government regulatory authority.


Although there were ideas current in the seventeenth and eighteenth centuries (and contemporaneous land use regulation by States) that might inform an interpretation of the Takings Clause, there is almost no direct evidence of the intent of those who actually proposed and adopted the Takings Clause.(fn10) The Bill of Rights was adopted by Congress in 1789 and subsequently ratified by the States.(fn11) Many of the provisions in the Bill of Rights arose from petitions submitted by the States, but this was not the case with the Takings Clause. The Takings Clause stands alone as the only part of the Bill of Rights that was not requested by a single state.(fn12)

Madison's first draft of what became the Takings Clause stated that a person could not "be obligated to relinquish his property, where it may be necessary for public use, without a just compensation."(fn13) This draft was later revised, without explanation, into its current version by a Committee of the House of Representatives. In the reported debate on the proposed Bill of Rights in the House and Senate, there is no reference to the Takings Clause.(fn14) Certainly the Takings Clause did not reflect an eighteenth-century view that the government could not regulate land without providing compensation; scholars have pointed to numerous practices of the States at the time of adoption of the Bill of Rights that involved substantial government regulation of land use without compensation.(fn15)

In short, there is no contemporaneous evidence that the people who drafted or adopted the Takings Clause cast the provision as a central protection of government regulation of private property.(fn16) Even more certainly, there is no evidence that the Takings Clause "was designed" to incorporate principles of distributive justice. This, of course, does not mean that the Takings Clause cannot fill that role; it does, however, raise real questions as to whether the "original intent" of its drafters supports a specific view of the meaning or purpose of the Takings Clause.


The Takings Clause was the subject of relatively little attention until the pivotal Supreme Court case of Pennsylvania Coal Co. v. Mahon(fn17) in 1922. Pennsylvania Coal involved a challenge by coal companies to a Pennsylvania statute that required coal companies engaged in subsurface mining to leave pillars of coal in place to support the surface from subsidence.(fn18) Justice Holmes, in a short but seminal opinion, held that the statute violated the Takings Clause.(fn19) The Supreme Court, for the first time, announced the crucial proposition that a regulation may violate the Takings Clause even if it does not effect a physical appropriation of property.(fn20) As Holmes stated, "The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking."(fn21)

To be sure, there is an obvious logic to the proposition. Being precluded from making use of your property may have the same effect as having title actually taken by the government. But besides the "obvious," on what did Holmes rely for this groundbreaking proposition?(fn22) The answer is nothing. Holmes cites to no support for this position other than the self-evident logic. Whatever its "obvious" logic and appeal, the expansion of the Takings Clause to cover regulatory acts by the government was a tremendous shift from the Court's past treatment of the Takings Clause.(fn23) It was, and is, an extraordinary assertion of the judiciary's authority to invalidate otherwise validly adopted government regulation based on a court's view of whether the regulation goes "too far." Few opinions of the Supreme Court have resulted in so great a usurpation of authority by the judiciary with so little support.

Holmes sketched out a variety of factors that he viewed as relevant to determining "how far" is "too far" for purposes of determining whether a regulation constitutes a taking of private property. I will discuss some of those below, but the crucial first step was the equation of regulation with a taking. Since Pennsylvania Coal, the Court has identified a limited class of "per se" takings, but the major theme of Supreme Court takings analysis has been an "ad hoc" balancing of factors whose basis have largely been unexamined and unexplained.(fn24)


In 1960, the Supreme Court announced what...

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