Working Paper No. 08-60:
Takings, Regulations, and Natural Property Rights
Date Posted: November 2008
Abstract (below) | Full text (most recent) on SSRN
According to most legal history and takings scholarship, the whole notion of a "regulatory taking" was a contradiction in terms until Justice Oliver Wendell Holmes invented it in the 1922 Supreme Court decision Pennsylvania Coal v. Mahon. This Article calls that view into question. The Article reexamines a line of constitutional eminent-domain decisions decided in the state courts over the nineteenth century. These decisions are often read to suggest that property "regulations" could never trigger takings protections unless they physically invaded owners' land. In fact, however, they drew on Founding Era ideas about the regulation of natural property rights to generate a body of what modern lawyers would call a body of "regulatory-takings" law.
In these decisions, a "regulation" was a positive law that secured to the owner her natural property rights. Such a regulation tried to order how different species of property were used in close quarters, for the purpose of facilitating the free use of property generally. If a law did not regulate consistent with principles of natural right, it constituted an "invasion of right," and "took" some of the use rights to which owners were entitled as part of their "private property" for takings purposes.
The Article has three main lessons for contemporary takings and property scholarship. First, regulatory-takings law does not need to be as incoherent as it is widely assumed to be. If modern federal and state regulatory-takings doctrines are messy now, it is not because regulatory-takings law is inherently messy. Rather, modern courts must not mind the messiness, most likely because they prefer another substantive theory of property over natural-right property theory. Second, this natural-right theory provides a useful counterpoint to most modern property law and scholarship, which tend to justify to property rights and regulation in terms of utilitarian principles. The nineteenth-century state cases, by contrast, show one way in which the law may ground property rights and regulation in terms of concepts of personhood and freedom. Finally, the natural-right distinction between "regulations" and "invasions of right" offers some evidence, though not dispositive evidence, as to what the federal Takings Clause may have meant when originally drafted and ratified.