I have been doing a series of responses to Cass Sunstein’s criticism of the originalist Supreme Court Justices: See these posts on affirmative action, and commercial speech. This post discusses Sunstein’s criticism of regulatory takings:
This is far from the only area in which they have been doing so. For example, many conservatives believe in strong protection of property rights. They want courts to use the Fifth Amendment’s takings clause to strike down regulations that interfere with property rights — even though some leading historical accounts suggest that when originally ratified, the Fifth Amendment was limited to actual physical takings of property, and didn’t restrict regulation at all. Here too, Justices Scalia and Thomas have made no serious inquiry into the original understanding.
I agree with Sunstein’s position here more than I have in my previous posts. I agree that Scalia and Thomas have not made much of an inquiry into the original meaning here. I also agree with that some leading historical accounts suggest the original Fifth Amendment did not restrict regulatory takings.
But there is more to the matter than this. First, while I agree that the Fifth Amendment passed in 1791 did not cover regulatory takings, the 14th Amendment passed in 1868 may have. I present arguments for this conclusion here. People have recognized that the individual rights applied against the states after the Civil War had a different content than those that existing in 1791. The 14th Amendment enactors also had a more individual rights understanding of government than the enactors of the original Bill of Rights. Further, there is strong evidence that the Takings Clause had become much more embedded into American traditions by 1868 and some evidence that it extended to at least some regulatory takings.
Second, Sunstein also ignores, as Mike Ramsey has pointed out, that there is significant precedent beginning at least in the 1922 case of Pennsylvania Coal v. Mahon that some regulations can be takings. So even if the original meaning did not protect against regulatory takings, precedent does.
This is once again another area where more originalist work is needed. But for now Cass Sunstein’s attack on the originalist Justices is only partially right.