Taking of Property (Update 1)

• Author: Daniel A. Farber
• Pages: 2644-2646

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Recent historical scholarship indicates that the taking clause was something of an innovation. Only two of the state constitutions adopted between 1776 and 1780 required the government to pay compensation when private PROPERTY was taken for a public use. The lack of constitutional protection for PROPERTY RIGHTS was consistent with the republican ethos of the period. BENJAMIN FRANKLIN, for example, once said that "Private Property ? is a

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Creature of Society, and is subject to the Calls of that Society, whenever its Necessities shall require it, even to its last Farthing; its contributions therefore to the public Exigencies are ? to be considered ? the Return of an obligation previously received, or the Payment of a just Debt." The taking clause seems to represent a victory of Lockean liberalism over this earlier republican philosophy.

The Supreme Court has recently used the taking clause to strike down a variety of government regulations. In one case, the federal government claimed that the public had the right to use a marina that a private developer had connected with a public waterway. The Court held that giving the public access to the marina would be an unconstitutional taking of the developer's property. In another case, Congress was concerned because certain lands belonging to American Indians had so many owners that managing the lands had become impractical. As a way of consolidating landholdings, a federal statute mandated that some of the tiniest interests would revert to the tribe on the owners' deaths. This, too, was an unconstitutional taking. The Court also found a taking when New York required landlords to give their tenants access to cable television. The reason was that the cable box would "take" some of the space on the building's roof.

A 1987 case, Nollan v. California Coastal Commission, exemplifies the Court's revived interest in protecting property rights. The case involved a couple who wanted to build a larger beach house. As a condition for receiving a permit, the California Coastal Commission required them to allow the public to walk along the beach. The majority opinion was written by Justice ANTONIN SCALIA, who had quickly emerged as the strongest guardian of property rights on the REHNQUIST COURT. Scalia was willing to concede, at least for the purposes of argument, that California could have banned the construction entirely as a means of preserving the public's right to...