Legal Commentary

From Richard Epstein

After multiple detours about both federalism and the original position, it is probably worth while to return to the original structure of Supreme Neglect. The initial task is not the substantive one of figuring out exactly what the takings clause means. Rather, it is trying to develop a conceptual framework for evaluating the text as it appears in the Constitution. That task has to avoid two extremes. The first of these is that textualism is a poor method of constitutional interpretation. If that means that we have to start somewhere other than the text, it is clearly a nonstarter because we could not even figure out what why one should invoke a constitution at all. We could do as well with a blank piece of paper. But once we start with the text we have, as the saying goes, put it in context to figure out it complete meaning. This is the approach that has to be used with all texts, and it requires I think the following general appreciation. What is the intellectual temperament of the people who adopted the doctrine, and what moves on interpretation are needed to lend it a certain level of coherence to the basic constitutional precept. This is not a new challenge. It arose, for example, in Roman law in connection with the Lex Aquilia, where it gave rise to an elaborate interpretive system that works as well today as it did then. For a discussion of the linkage between then and now, see my A Common Lawyer Looks at Constitutional Interpretation, 72 Bost U. L. Rev. 699 (1992).

Here it is necessary to take into account two kinds of gaps in the basic doctrine. The first is that which deals with the problem of circumvention which asks the question, given the basic prohibition against takings, what actions undertaken by government are so close to the original that the ban could be easily avoided if these practices were not limited as well. One clear implication of this position is that physical occupation cannot be the outer bound. Just think of a case where the state tells a person that he cannot touch or use his automobile, even though the state makes no use of it for itself. Here everyone thinks that this action is ?tantamount? to a taking and therefore should be treated in the same way. And if that rule is good for chattels, then it is also good for land. And once the total inability to enter one?s own land counts as a taking, there is no clear line that stops lesser restrictions on use from falling into that class.

To many the idea that all land use regulations are takings would be an anathema because it cuts far too broadly. And so it does. The state could keep me from blasting rocks on my own land if I am a menace to others. Hence the second great principle of constitutional interpretation cuts in the opposite direction, and thus allow in each and every case of individual rights, the state to offer some justification for the restriction in order to protect, as is commonly said, the health and safety of others. (The morals and the general welfare are also parts of the police power, which raise far deeper complications that I put aside for the moment.)

The two principles work in opposite directions. Circumvention expands the scope of the clause, and the police power narrows it. But the dual corrections yield a far better conceptual framework than we get by ignoring both issues. The question, which Rick Hills constantly asks, is how does this square up with the historical evidence. In one sense, it does not, for there is little or no direct discussion of the takings clause, or for that matter, any of the guarantees in the Bill of Rights. But in another sense, it squares up very well. The mode of interpretation that I use derives from Roman law and was incorporated into the common law from an early date. The Framers understood and worked within this tradition, which in my view provides ample support for the basic approach.

More to come on the application of this principle.