Takings, a Second Time
In 1985, I published my book, Takings: Private Property and the Power of Eminent Domain (1985), which promptly received a number of scathing reviews by authors who are best left unnamed for the moment. But I was confident then, as I am confident now, that the approach that I took to the topic was basically correct. The conventional wisdom on that subject went into overdrive to confine the scope of the takings cause so that it did not overrun the rest of the constitution, or create a strong set of imperatives that the political branches would have to observe. My own contrary view was that the clause was as comprehensive and bold as its prose, and that no more than any other broad guarantee in the constitution (think of the First Amendment on speech and religion), it did not deserve to suffer a death by a thousand cuts by judges anxious to preserve broad discretion in the national and local governments to regulate economic affairs or the use and disposition of private property.
Now 23 years later I have returned to the same topic in a new book from Oxford University Press, called Supreme Neglect: How to Revive the Constitutional Protection for Private Property. The purpose of this new volume is to do several things. The first of these is to rearticulate the positions that I set out in the earlier volume in a form that is both accessible to a general audience and rigorous enough for an academic audience. The second purpose was to update the book to take into account some topics that only came to prominence after the original takings book was published. I decided to leave out discussions of some of the procedural obstacles to raising takings claim in federal court, but I did include discussions on the issues surrounding the problem of temporary partial takings as in the First English case, and of unconstitutional conditions problem as it was raised in cases like Nollan and Dollan.
There is a sneaky character of great constitutional provisions. The shorter they are, and the more common their language, the more difficult the task of their interpretation. Private property, for example, is not just a two-word phrase, but it represents an entire world view, which necessarily needs to be distilled from sources external to the text. Takings, public use and just compensation are also terms that come easily off the tongue, but are hard to explicate in any coherent fashion. In the next few blog posts I shall work through some of the key arguments on these issues. But for the moment, I will just note that I am quite proud that my own views leave me outside the mainstream of both the political left and right.
The left of course is deeply suspicious of all forms of private property and urges various populist recipes for government intervention that turn out to be worse than the disease. The right often is so anxious to avoid charges of judicial activism that it turns somersaults to avoid giving broad constitutional texts their broad intellectual content. Both sides start with prior positions that have no grounding in either constitutional text nor the theory of limited government (that "necessary evil") which underlies the document. In future posts, I hope to show that the path I have charted does justice to both the text and the structure of our original, but now forgotten, constitutional order. It was no accident that I titled the book "Supreme Neglect," for it is the Court's tepid application of the takings clause that is the source of most of our present intellectual, and institutional, difficulties.
- Richard Epstein