Winding toward the heart of the takings muddle: Kelo, Lingle, and public discourse about private property.

• Author: Baron, Jane B.

People care about property. In 2005, the United States Supreme Court decided two cases with deep connections to that concern, both brought by property owners challenging the government's power under the Takings Clause (1) to take title to, or significantly affect the value of, their property. In both cases, the Court rejected the property owners' claims and upheld the government's action against charges that it had overreached. In both cases, the Court found the issue to be relatively simple, legally speaking. One of these cases, Kelo v. City of New London, (2) has been seen as controversial from the moment it was decided, (3) and remains controversial today. (4) The other case, Lingle v. Chevron U.S.A. Inc., (5) has received far less public attention, despite the fact that its holding, unlike Kelo's, (6) established new law in the takings area. (7)

It might be thought that Kelo's relatively greater impression in the public mind is traceable to its sympathetic facts. The case was, after all, brought by long-term residents who stood to lose their homes if the economic redevelopment project at issue were permitted to go forward. (8) Lingle, in contrast, dealt with the constitutionality of a Hawaii ordinance limiting the rents oil companies could charge to lessee-dealers. (9) No sympathetic displaced homeowners here. The technical issues in each case were also different in a way that might account for Kelo's stronger impact on the public consciousness. Kelo involved a direct and overt exercise of the state's eminent domain power to take private property, whereas Lingle was a "regulatory takings" case, alleging that what appeared to be a garden-variety economic regulation in fact constituted a taking of property. (10) Kelo's outcome can easily be spun as a tale of tragic victimization of innocent homeowners by a voracious government captured by powerful corporate interests. It is hard to find much melodrama in a rent cap.

While these differences are by no means trivial, this Article argues that the significance of Kelo and of Lingle lies elsewhere--in the extent to which the two cases engage with, or fail to engage with, the cultural debate over the function of property in contemporary society. As is developed in Part I, the facts of Kelo did indeed raise emotionally and politically charged issues with which the public was strongly engaged. Notwithstanding its controversial political implications, however, Kelo turned out to be a fairly easy legal case from a technical standpoint. As least as the majority saw it, two hundred years of case law, (11) including two particularly noteworthy decisions from the mid- and late-twentieth century, (12) established law unfavorable to the plaintiffs' claims. (13) In terms of "the ongoing conventions of constitutional adjudication," (14) in particular fidelity to precedent, Kelo was legally uncomplicated.

Because the majority saw the result as virtually dictated by prior precedent, it wrote an opinion that seems insensitive to the issues the public was, and still is, debating. (15) Many people--including prominent academics (16)--understand property "as a bulwark which protects material wealth, liberty, and autonomy; for the government to impair this bulwark--without recognizing that impairment--touches, on the deepest levels, the feelings of security of ordinary citizens." (17) Although Kelo's facts raised precisely this concern over governmental power and individual liberty, the Court's opinion, which focused mainly on precedent, did not seriously address the fear that government might threaten citizens' security or confidence in the protection of their rights. (18) If, as one influential constitutional scholar has asserted, legal authority is not merely a matter of "the logical manipulation of received rules," but instead must be conceived "as a living connection between the Court and the nation, the result of a certain relationship of trust that the Court works to establish with the American public," (19) then the Court violated the conditions necessary to create that trust. Such trust requires, "at a minimum," that the public be confident "that the Court will justly balance its obligation to maintain fidelity to rule-of-law virtues against its obligation to align its judgments with constitutional culture." (20) By attending almost entirely to prior law on the public use question, and failing to address the public's beliefs and values, including its beliefs and values about the Takings Clause, (21) the Court evaded involvement in what is now an ongoing public dialogue about property and government. For this, it will not be soon forgiven. (22)

Part II argues that the Court was far more effective in Lingle than it was in Kelo in engaging directly with public unease about the relationship between government and private property. As in Kelo, the legal issue in Lingle was relatively uncomplicated. In evaluating the validity of the alleged taking, the test from Agins v. City of Tiburon (23) dictated that the Court merely had to consider whether the regulation in question did or did not "substantially advance legitimate state interests." (24) As in Kelo, the Court's view of its precedents was decisive; the Agins language, the Court found, "was derived from due process, not takings, precedents." (25) In the Court's eyes, it was as easy in Lingle to see how the due process cases were distinguishable as it had been in Kelo to see how the prior public use cases were determinative.

But the Court in Lingle did not confine itself to precedent. It went on to differentiate due process anaylsis from takings analysis, an approach which provided the Court the opportunity to explain the kind of injury that, in its view, is distinctively cognizable under the Takings Clause--injury involving a burden of a particular "magnitude or character" that is not properly "distributed among property owners." (26) In some ways, this holding broke no new ground. In words that have often been repeated, the Court asserted a half-century ago in Armstrong v. United States 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." (27) The growth of "property rights movements" (28) and the passage of ordinances, such as Oregon's Measure 37, (29) which seek to compel government to compensate owners for the economic losses imposed by regulatory actions, demonstrate that people care deeply about the question of the distribution of regulatory burdens. This concern is well-warranted, for "[u]nderstanding constitutional limitations on the power of the government to regulate private commercial behavior, especially where those regulations frustrate an economic opportunity related to real property, is central to mapping the relationship between the individual, state, and society." (30) By openly returning takings jurisprudence to its Armstrong heart in "fairness and justice," without attempting to set forth a definitive "test" for determining what is fair and just, the Court left open the possibility of a conversation between it and the public--including "property rights" advocates--about what the Takings Clause will mean in the future. Since the public cares about property, this is an important conversation to enable.

Part III describes the implications of Kelo and Lingle for future redevelopment projects. Here, I acknowledge that my conclusions are quite tentative. We know now a lot more than we did before about what will be regarded as a "public use" as a matter of federal constitutional law. But since Kelo can easily be overridden by state or federal legislation--legislation that the majority expressly invited and that states have rushed to pass (31)--it is not clear how much relevance Kelo will have in future eminent domain cases. On the regulatory takings side, we know now more than we did before what is not part of the analysis; the Court in Lingle successfully disentangled due process from takings claims. We also know now, generically as it were, the kinds of concerns the Court thinks are properly addressed in regulatory takings claims. (32) How the general concepts articulated in Lingle will be implemented in the future-what particulars will truly count--is, alas, another question altogether. From a doctrinal point of view, it is not clear how much guidance the two opinions will provide to municipal planners in assessing whether proposed land use regulations will survive judicial scrutiny under the Fifth Amendment.

The real significance of the opinions may relate to the issue of public trust and the constitutional culture of property rights. In upholding broad exercises of the eminent domain power, Kelo may have rather paradoxically made it more difficult for state and local governments to exercise that power, because it only heightened distrust of municipal actions affecting property. This heightened distrust may well extend beyond eminent domain to less obvious exercises of municipal power--such as new regulatory regimes or innovative taxing schemes. Thus, despite the Court's endorsement of broad exercises of municipal power, Kelo may have rendered it harder, rather than easier, for local governments to exercise control over local land development.

1. KELO: POSSIBILITIES UNREALIZED

   The facts of Kelo are relatively well-known. (33) The case arose out of efforts to revitalize the Fort Trumbull area of the city of New London (the "City"), itself a "distressed municipality." (34) The City sought to leverage the decision of Pfizer Inc., a pharmaceutical company, to build a research facility nearby; (35) the New London Development Corporation created an ambitious plan for parks, public walkways, office and retail space, and residences. (36) This plan, it was hoped, would create jobs, increase tax revenues, and rejuvenate downtown New London. (37)

   Approved in January 2000...