The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
When Antonin Scalia joined the Supreme Court in 1986, property rights were definitely the "poor relation" of constitutional law. Most judges, including even many conservatives, believed that the courts should largely stay out of property rights issues. Justice Scalia did much to change that. During his thirty years on the Court, he helped lead a revival of judicial protection for constitutional property rights. But he also missed a valuable opportunity to link that revival to the originalist approach to constitutional interpretation that he forcefully advocated on other issues.
I. Scalia's Role in Strengthening Protection for Property Rights.
Beginning in the late 1980s, the Supreme Court issued a series of decisions that strengthened judicial protection for property rights under the Takings Clause of the Fifth Amendment. For a long time, the Court had been unwilling to rule that any but the most blatantly severe regulatory restrictions on property rights qualified as "takings" that require "just compensation" under the Amendment. Justice Scalia authored two important decisions that helped reverse that trend. In Nollan v. California Coastal Commission (1987), he wrote an opinion restricting government's power to force landowners to allow outsiders to use their property without compensating them. In Lucas v. South Carolina Coastal Council (1992), Scalia's majority opinion ruled that a regulation that completely wipes out all economically valuable uses of an owner's land automatically qualifies as a taking. Both rulings were important regulatory takings milestones. In Stop the Beach Renourishment v. Florida Department of Environmental Protection, Scalia wrote an important plurality opinion concluding that judicial rulings can sometimes constitute takings.
Scalia also joined majority opinions written by other justices in several other decisions strengthening protection for property rights by expanding the range of regulations that qualify as takings, culminating in Koontz v. St. Johns River Water Management District (2013), the most important Supreme Court victory for property rights in many years. In Kelo v. City of New London (2005), Scalia and three other justices sought to revive judicial enforcement of the Fifth Amendment's requirement that the government may only take private property for a "public use." Justice Sandra Day O'Connor's dissent, which Scalia joined, forcefully argued against the then-dominant view that virtually any potential public benefit qualifies as a "public use," including the prospect of "economic development" by the new private owner of the condemned property. O'Connor's dissent and the public debate triggered by Kelo shattered the previous seeming consensus in favor of an ultrabroad definition of "public use." In later years, Scalia twice publicly called on the Court to overrule Kelo.
II. The Originalist Dog that Barely Barked.
Scalia clearly took an interest in property rights and played a major role in their revival. But, strikingly, his opinions in property rights cases rarely invoked originalist arguments, even though Scalia is best known for his strong advocacy of originalism in constitutional law. His regulatory takings opinions largely rely on a combination of textual arguments, intuition, and precedent. In most of them, he barely even considered the original meaning of the Takings Clause. His few brief references to the original meaning are limited to trying to fend off originalist counterarguments raised by other justices.
In Kelo, Scalia chose not to join Justice Clarence Thomas' originalist dissent, and instead joined only Justice O'Connor's nonoriginalist opinion. There is a strong originalist case against Kelo. But the Court's most prominent originalist essentially ignored it.
When it comes to property rights, the Court's leading originalist dog did surprisingly little barking. Scalia's failure to consider originalist arguments in property rights cases understandably led critics to charge that his jurisprudence on these issues was politically motivated rather than principled. In fairness, the failure may in part be explained by the relative paucity of scholarship on the original meaning of the Takings Clause when Scalia first began addressing these issues in the 1980s. Since then, however, scholars such as James Ely and my George Mason colleague Eric Claeys have filled many of the gaps in our knowledge, and shown that there are compelling originalist justifications for requiring compensation for many regulatory takings. Other scholars have contended that the original meaning justifies far-reaching deference to the government. Yet Scalia continued to largely ignore originalism in later takings cases.
Scalia's neglect of originalism in this field might also in part be explained by its potentially radical implications. For example, Thomas' opinion in Kelo would likely require the overruling of Berman v. Parker (1954), a longstanding precedent that O'Connor's opinion would have allowed to stand. But Scalia could easily have written an opinion stating that, although Berman is too well-entrenched a precedent to overrule completely, its flawed reasoning should be narrowly confined to its facts. Moreover, Scalia has not hesitated to advocate the overruling of other longstanding precedents on originalist grounds, most notably Roe v. Wade, which is now almost as old as Berman was at the time of Kelo. It is also likely that many more people rely on Roe (hundreds of thousands of women who have abortions every year) than rely on Berman (state and local governments engaged in "blight" condemnations).
Finally, Scalia might have thought that his property rights rulings did not need any elaborate originalist defense, because they flow naturally from any minimally plausible interpretation of the Takings Clause. For example, it seems strange to conclude that a regulation that takes away virtually all the owner's control over his own property (Lucas) or allows the public to repeatedly trespass on it (Nollan) could somehow avoid being a taking. This kind of intuitive textualism has a good deal of force. But, as Scalia surely recognized, good legal reasoning—including originalist reasoning—often reaches counterintuitive conclusions. A good originalist should, at the very least, do some historical analysis to check if his intuitions square with the original meaning.
In sum, Scalia deserves great credit for his role in strengthening judicial protection for property rights. But it is unfortunate that he made so little effort to justify his defense of property rights on the basis of originalism. That task will hopefully be taken up by other justices, perhaps even including Scalia's own successor.