James W. Ely (Vanderbilt University) has posted "'To protect all the essential elements of ownership:' Late Nineteenth Century Emergence of the Regulatory Takings Doctrine." The article will appear in the Brigham-Kanner Property Rights Journal (2024) Here's the abstract:
This article examines the gradual emergence of the regulatory takings doctrine in the years between the end of the Civil War and the decision in Pennsylvania Coal v Mahon (1922). It is often asserted that the takings clause of the 5th Amendment, and its state counterparts, were understood to cover only appropriation of title and physical invasion, and had no application to regulations of property until the opinion by Holmes in Pennsylvania Coal. This article challenges that reading of the historical record. It concludes that the doctrine of regulatory takings began to take shape in the last decades of the nineteenth century and that the Pennsylvania Coal decision was not the innovation that is so often pictured.
The Supreme Court heard relatively few takings cases in the late nineteenth century and provided little guidance as to the evolution of the regulatory takings doctrine. Although in Pumpelly v Green Bay Company (1872) the Court declared that an interference with the common use of property could be the equivalent of a taking, it subsequently retreated to the view that 5th Amendment was confined to appropriation of title or physical takings. Consequently, state courts took the head in fashioning the contours of takings jurisprudence.
State courts played a crucial role in two respects. First, they increasingly understood private property in terms of various attributes, such as the right to use, exclusively possess, and dispose of, a thing rather than the thing itself. In 1888 eminent treatise writer John Lewis famously characterized property as “a bundle of rights.” This redefinition of property profoundly changed and enlarged the notion of a taking. A number of state courts began to treat property as a cluster of rights each of which was entitled to constitutional protection. For example, during the late nineteenth century some state courts invalidated land use regulations as a taking even though neither the title or physical possession of the owner was challenged. Second, there was renewed emphasis on the protective function of the federal and state constitutional guarantees as security for individual rights against the government.
Two prominent jurists helped to formulate the regulatory takings doctrine in the closing years of the nineteenth century. In 1891 Justice David J. Brewer maintained that regulations which destroyed the use of property effectively deprived the owner of his property. Justice Holmes, while on the Supreme Judicial Court of Massachusetts, equated physical appropriation and regulations which stripped an owner of his rights. He suggested that there could be a taking of property without any physical interference.
Although some state courts continued to adhere to the narrow physical concept of a taking, a substantial number of jurisdictions ruled that restrictions on use could amount to a taking. In short, Pennsylvania Coal merely brought to fruition developments which had been germinating in the state courts and among commentators for decades.
The full article is available here, at SSRN. (h/t Legal Theory Blog)
-- Karen Tani
