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Real Property, Trust and Estate Law Journal

Summer 2023

Originalism’s Achilles Heel: The Takings Clause

Audrey K. Carver


  • The natural meaning of the text and historical evidence tends to show that the Takings Clause requires compensation only for physical takings.
  • The Court is vulnerable to criticism that it applies originalism only where it is ideologically convenient.
  • To protect the legitimacy of originalism, its proponents should urge the originalists on the Court to address originalism’s Achilles heel.
Originalism’s Achilles Heel: The Takings Clause
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Author’s Synopsis: Despite the rising influence of originalism on the Supreme Court’s jurisprudence, the Court has yet to acknowledge the theory’s Achilles heel: the Takings Clause. The natural meaning of the text and historical evidence tends to show that the Takings Clause requires compensation only for physical takings. But the Supreme Court has recognized a right to compensation for regulatory takings for de-cades, and the current justices, at least four of whom are originalists, have not questioned the regulatory takings doctrine. The Court is vulnerable to criticism that it applies originalism only where it is ideologically convenient. The originalist justices’ failure to address the original public meaning of the Takings Clause threatens originalism’s legitimacy, and until the Court addresses the theory’s most vulnerable point, it stands as proof that originalism is not as apolitical as its proponents insist. 

The originalist justices should incorporate into their takings decisions the arguments put forth by originalist scholars who support a broader view of the Takings Clause’s original meaning. Although stronger evidence supports a narrow view, reliance on the evidence supporting a broader view is better than abandoning originalist analyses when they are inconsistent with the justices’ political ideals. To protect the legitimacy of originalism, its proponents should urge the originalists on the Court to address originalism’s Achilles heel. The failure to do so emboldens one of originalism’s most poignant criticisms: that it is a conservative power-grab disguised as an apolitical, objective theory of constitutional interpretation.

I. Introduction

Despite the rising influence of originalism on the Supreme Court’s jurisprudence, the Court has yet to acknowledge its Achilles heel: the Takings Clause. The natural meaning of the text and historical evidence tends to show that the Takings Clause requires compensation only for physical takings. But the Supreme Court has recognized a right to compensation for regulatory takings for decades, and the current justices, at least four of whom are originalists, have not questioned the regulatory takings doctrine. The Court is vulnerable to criticism that it applies originalism only where it is i and deologically convenient. The originalist justices’ failure to address the original meaning of the Takings Clause threatens originalism’s legitimacy, and until the Court addresses the theory’s most vulnerable point, it stands as proof that originalism is not as apolitical as its proponents insist.

II. Originalism and Its Relevance

Originalism is a theory of constitutional interpretation. Originalists maintain that the Constitution should be interpreted as it was understood by the Framers and the American public in 1789. Originalists similarly interpret the Bill of Rights and the Reconstruction Amendments according to the public meaning of those provisions at the time they were drafted. The theory focuses on the Constitution’s text, its history, and the broad principles embedded in its structure––separation of powers, federalism, and individual rights––to determine a narrow range of plausible, objective meanings for its provisions. Proponents of originalism celebrate its capacity to restrain judicial decision-making by forcing judges to adhere to the Constitution’s text, history, and structure. Originalists note that if judges are not tethered to an objective meaning of the text, they exercise great power in defining constitutional rights, as well as the operations and authority of the government. By restraining judicial decision-making, originalism promotes the separation of powers in the federal system, reserving political questions for resolution by democratically elected legislatures. Originalists argue that there is textual and historical evidence that the Framers intended for the Judiciary to lack political influence. For example, Article III authorizes the judicial power only to hear “cases” and “controversies,” which seems to preclude the ability to decide questions of political significance that affect more than the parties to a legal controversy. Originalism is legitimized by such evidence of the Framers’ apparent intent for the structure of American government and the Judiciary’s role within it.

Originalism began to receive considerable public attention following Attorney General Edwin Meese III’s speech to the American Bar Association in the summer of 1985. He asserted that the Framers intended that the “text of the document and the original intention of those who framed it would be the judicial standard in giving effect to the Constitution.” Originalism’s early proponents also include Justice Antonin Scalia and Judge Robert Bork. Justice Scalia advocated for originalism because he believed it to be the best exegetical approach to constitutional interpretation. Both he and Judge Bork argued that originalism is the only method of constitutional interpretation that restrains the Judiciary as the Framers intended.

Since the 1980s, originalism has evolved, and originalists differ regarding their beliefs about the doctrine’s application. Modern originalism generally requires an interpreter of the Constitution to determine the original public meaning of the text. To do so, the interpreter must “understand not only the way words were used but also the purpose for which the words were deployed, the social context, and so on.” To interpret a constitutional provision, one must first determine the meaning of the words within it. Dictionaries contemporary to the ratification help determine the objective meaning of words in the text. But context always informs meaning.

Context is found in several ways. First, the structure and purpose of the text may provide context. One must look at the role of the provision within the Constitution’s overall structure, just as a single provision of a statute must be understood with reference to its other parts. Evidence of the provision’s purpose may also shed light on the meaning of its text in context. For example, was it meant to codify an existing principle, or expand a right that had been more limited? Next, it is helpful to understand how the public understood certain rights or powers at the time of ratification. The Framers’ perspectives may be found in records of debates at the Constitutional Convention or ratifying conventions. Leading contemporary figures discussed political power and individuals’ rights against the government in publications, such as the Federalist Papers or essays on legal theory. Additionally, English political theory influenced these perspectives, whether early Americans wanted to maintain the British status quo, depart from it wholeheartedly, or something in between. Thus, reviewing seventeenth-century and early- to mid-eighteenth-century English sources contributes to the analysis. State constitutions are insightful as well. If a state constitution contained language like that found in the Federal Constitution, historical evidence of the context and purpose of the state constitution’s language may shed light on its meaning in the federal context. Finally, early judicial opinions from federal courts may reveal how the public originally understood the Constitution’s text. After engaging with a variety of sources of these types, originalists believe that a narrow range of possible interpretations should emerge. Within this range, there is likely a clear, ostensibly objective correct choice.

Originalism is relevant because there are at least four self-avowed originalists who sit on the Supreme Court today: Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. But even the nonoriginalist members of the Court welcome arguments based on the Constitution’s text and history, perhaps in part because their fellow justices find these arguments persuasive. The current Court has shown a willingness to overrule longstanding precedent when it is at odds with an original understanding of the Constitution. Thus, it is important to explore and understand originalism because it seems that is the field upon which the constitutional jurisprudence game is to be played, at least for the present.

III. What Is the Original Public Meaning of the Takings Clause?

The final clause of the Fifth Amendment states, “nor shall private property be taken for the public use, without just compensation.” There is no debate that the original meaning of the clause requires compensation for physical takings, which involve the “government physically seiz[ing] property either by claiming title to the property or permanently occupying a portion of the property.” But does the original public meaning of the Takings Clause require compensation for regulatory takings? A regulatory taking occurs when the government, without taking title or possession, regulates a landowner’s use of property in a way that greatly lessens or even destroys its value to the landowner. For example, a county regulation prohibiting the construction of buildings or structures in a flood zone, even temporarily, would be a regulatory taking if it actually denies a landowner “all” valuable use of his or her property.

Looking back, it appears that the seeds for regulatory takings were planted in 1922, when the Supreme Court declared a state coal mining statute unconstitutional in Pennsylvania Coal Co. v. Mahon. In that case, a coal company had sold the surface rights to its land. In the deed, the coal company reserved the right to mine for coal beneath the surface and the grantee waived any claim for damages caused by the coal company’s continued mining. But in 1921, the Pennsylvania legislature passed the Kohler Act, which forbade the mining of anthracite coal in a way that would cause the subsidence of a residential dwelling. One of the owners of surface rights sued, alleging that the coal company’s continued mining violated the statute.

In his opinion, Justice Holmes, without citing to precedent or any other source, declared a “general rule”: “[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” The Court concluded that the Pennsylvania statute in this case went too far and held that the statute violated the Takings Clause. Justice Holmes acknowledged that the statute was an exercise of the state’s police power––the authority to limit individual freedoms in the interest of the public health, safety, or general welfare. But he reasoned that the public’s interest in avoiding the subsidence of a person’s home was slight in comparison to the alleged taking in this case. Since the statute made it commercially impractical for the coal company to mine land that it owned, it had “very nearly the same effect for constitutional purposes as appropriating or destroying it,” according to Justice Holmes. He reasoned that if the “seemingly absolute protection” of the Takings Clause “is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last private property disappears. But that cannot be accomplished . . . under the Constitution . . . .” Justice Holmes concluded, “[s]o far as private persons or communities have seen fit to take the risk of acquiring only surface rights, we cannot see that the fact that their risk has become a danger warrants the giving to them greater rights than they bought.”

Pennsylvania Coal was the product of shifting perspectives on government regulation. As the economy evolved such that intangible property became as valuable as land, “legal thinkers . . . concluded that the reach of takings law had to be expanded.” For example, in his 1888 treatise, John Lewis, an “early champion of the broad reading of the Takings Clause,” asserted,

If property . . . consists, not in tangible things themselves, but in certain rights in and appurtenant to those things, it follows that, when a person is deprived of any of those rights, he is to that extent deprived of his property . . . though his title and possession remain undisturbed . . . .

Pennsylvania Coal replaced what was once a bright line rule in the Supreme Court’s jurisprudence: only physical takings required compensation under the Takings Clause. It should be noted that one cannot mistake Justice Holmes’s opinion for an originalist one. He does not analyze the meaning of the text, nor its history or purpose. Moreover, the decision replaces objective standards with judicial discretion: how far is “too far”? In this way, Pennsylvania Coal steers the law of takings away from the originalist ideal.

Despite Pennsylvania Coal’s significance as the origin of regulatory takings jurisprudence, the Court rarely cited Justice Holmes’s “too far” test until its decision in Penn Central Transportation Co. v. City of New Yorkin 1978. Penn Central is said to have revived the Supreme Court’s regulatory takings doctrine and sets out a framework for analyzing whether a regulation requires compensation.

Since originalism garnered attention in the 1980s, many scholars have explored whether the law of regulatory takings is consistent with an originalist interpretation of the Constitution. The scholarship in the context of regulatory takings shows that one can manipulate originalism’s methods to yield an interpretation that is favorable to one’s position. Generally, there are two camps: one that makes the case that the original public meaning of the Takings Clause requires compensation for regulatory takings, and one that argues that the Takings Clause’s original meaning requires compensation only for physical takings.

A. The Broader View: The Argument that the Original Public Meaning Requires Compensation for Regulatory Takings

Every originalist interpretation begins with the text. The question of the Takings Clause’s meaning turns on the meaning of the terms “private property” and “be taken” in the text. The broader view rests on an assumption that “private property” refers to nonphysical property rights, such as the right to exclude, in addition to possessory interests. This interpretation is consistent with late-eighteenth-century views of property. There is evidence that the Framers’ generation would use the word “property” to refer to one stick in the bundle of property rights. For example, Sir William Blackstone defined the “right of . . . property” as consisting “in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.” Dean William Treanor notes that “well before the time of the American Revolution, intangible assets played a significant economic role and assets, whether tangible or intangible, were described as property.” During the Constitutional Convention, the Framers used the term “property” in various contexts, and its meaning changed accordingly. Thus, in 1789, “property” did not refer exclusively to a possessory interest in land. Accordingly, the broader view maintains that the Takings Clause could have been understood to protect not only title or possession of property, but also a landowner’s use and enjoyment of property, including rights like the right to exclude others.

The Constitution’s structure and the role of the term “property” in it informs the meaning of the word. Constitutional scholar and former law professor Robert G. Natelson notes that “‘property’ appeared twice elsewhere in the Constitution––once in the Property Clause, where it probably was limited to real estate, and once in the Fifth Amendment’s Due Process Clause, where it encompassed all kinds of property.” He asserts that “rules of construction suggest that when a word is used twice in a single provision—here the Fifth Amendment––the meanings are the same.” He concludes that given how the word “property” was used in the Due Process Clause, the Takings Clause protects more than mere ownership of property.

Next, the broader view assumes that value destroyed by regulation has “be[en] taken.” Proponents of the broader view dismiss definitions of “to take” contemporary with the Constitution’s framing as lacking context because dictionaries do not show how the verb was used in natural parlance. The argument emphasizes that nonphysical or intangible things could “be taken” in 1789. For example, Professor Michael Rappaport notes that in Federalist No. 19, James Madison “wrote that the Franks, after ‘having conquered the Gauls, established the kingdom which has taken its name from them.’” Professor Rappaport points to even more persuasive evidence in Federalist No. 54, in which James Madison states “‘that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants.’” This quote shows that “rights” could “be taken” in the natural parlance of 1789.

Professor Rappaport summarizes the broader view of the Takings Clause’s original meaning: “[I]f ‘property’ meant ‘property rights,’ including rights to use property, then the Takings Clause might have employed the term ‘take’ to mean taking those usage rights.” Having determined that this is a plausible interpretation of the Takings Clause’s text, proponents of the broader view provide historical and precedential support for the notion that the founding generation understood the Constitution to require compensation for regulatory takings.

Significantly, proponents of the broader view admit that historical evidence has played a small role in the evolution of regulatory takings doctrine. Professor Richard Epstein notes, “Historical arguments have played virtually no role in the actual interpretation of the clause,” and Professor Andrew S. Gold states, “There is little evidence that [Justice Holmes’s] pragmatic doctrine of when a regulation ‘goes too far’ is historically supported.” Nonetheless, proponents of the broader view point to certain historical sources to support the argument that the Takings Clause’s original meaning does not rule out a doctrine of regulatory takings.

Unlike most constitutional provisions, there is no evidence that participants in the Constitutional Convention or ratifying conventions debated the need to include a takings clause or the language that ought to be used in such a clause. Apparently, James Madison first proposed a takings clause “on his own initiative” in his draft of the first set of amendments (later known as the Bill of Rights), which he presented to Congress on June 8, 1789. The language in Madison’s proposed takings clause is not the same as the language that was ratified with the Constitution, but there is similarly no evidence that this change in text was debated. The lack of historical evidence of the provision’s purpose and why the particular language was chosen makes the originalist analysis of the Takings Clause unusually challenging. As Professor Gold puts it, “The existing evidence . . . is sufficiently ambiguous to preclude a clear sense of the original understanding.”

Because James Madison seems to be the author of the Takings Clause, scholars give special weight to his commentaries, which could tend to show his thoughts about how the Takings Clause should be applied. For example, supporters of the broader view cite to Madison’s essay, “Property,” which was published in the National Gazette in 1792. The essay responded to Alexander Hamilton’s proposed taxation policies. In “Property,” Madison states,

[bq]If there be a government then which prides itself in maintaining the inviolability of property; which provides that none shall be taken directly even for public use without indemnification to the owner, and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties; nay more, which indirectly violates their property, in their actual possessions, in the labor that acquires their daily subsistence, . . . the influence will have been anticipated, that such a government is not a pattern for the United States.

Scholars debate the significance of Madison’s distinction between direct and indirect violations of property. Professor Gold, for example, argues that this passage proves the possibility that Madison believed regulations affecting the value of property were “direct violations” of property because it categorizes only taxes as “indirect violations.” Elsewhere in “Property,” Madison states, “[A]s a man is said to have a right to his property, he may be equally said to have a property in his rights.” But even this comment, as applicable to the debate as it seems, does not decide the question of the Takings Clause’s original meaning. Although Madison’s post-ratification writings discuss property rights generally, and at times even mention the Takings Clause specifically, they do not decisively support the broader view of the Takings Clause’s meaning.

Proponents of the broader view also point to Blackstone’s writings and his influence on American law as historical support for their interpretation. Professor Epstein notes that it is difficult to “rival” Blackstone’s definition of property as consisting of several rights in “completeness, universality, and relevance.” In Blackstone’s Commentaries, published in the late 1760s, he wrote,

If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public . . . . Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights . . . . In this, and similar cases the legislature alone can . . . compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained . . . . All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price . . . .

Supporters of the broader view note Blackstone’s reference to compensation as protection for individuals’ “rights,” not merely title or possession, and recognition that compensation is for an “injury,” a term which could encompass a regulation’s negative effect on property use or value.

Finally, supporters of the broader viewpoint to early state court cases requiring compensation for nonphysical takings. The sooner the case was decided after the Constitution’s ratification, the more persuasive the case is as evidence of the Takings Clause’s meaning. The earliest case cited by Professor Gold is Commonwealth v. Coombs, a Massachusetts case decided in 1807. The case involved a statute that required compensation when a public highway was built across private land. Applying the statute, the Massachusetts court reasoned that the value eligible for compensation was not only the value of the physical property taken, but also the value of the right to use the land as the private landowner had before, if the construction impaired that right. As evidence of the meaning of the Takings Clause itself, this case and others like it do little more than show that early-nineteenth-century American law contemplated a doctrine of regulatory takings. In fact, this case exemplifies how proponents of the narrow view believe takings law should operate: the Takings Clause prohibits states and the federal government from taking title or possession of property without compensation, and the states may amend their constitutions or pass statutes that provide greater protection for landowners as they see fit. This system reserves greater decision-making power to both the state and federal legislatures to protect private property rights. State judges interpreting state law may expand these rights, but the effect of their judicial activism does not hold a candle to the Supreme Court’s nationally applicable judge-made law.

Generally, the proponents of the broader view support their argument with historical sources that tend to show that American society viewed property as consisting of various valuable rights and that the notion of compensation for government impairment of those rights was not unheard of. While there is certainly historical support for these principles, the proponents of the narrow view have stronger historical evidence to support their argument.

B. The Narrow View: The Argument that the Original Public Meaning Requires Compensation Only for Physical Takings

The narrow view is based on the natural meaning of the text of the Fifth Amendment and argues that it only requires compensation for physical takings. Proponents of the narrow view do not believe that the term “property” extends to rights in property. This view is consistent with the natural meaning of the word; if the Constitution were meant to require compensation for rights attendant to property, the Framers could have used language to that effect. Indeed, other constitutional provisions refer to “right[s]” that may not be impaired or infringed.

Some proponents of the narrow view argue that the natural meaning of “be taken” or “to take” at the time the Constitution was ratified could only refer to deprivations of physical things. This argument may have some support in contemporary dictionaries, but it is not as forceful as the argument that “property” referred only to the whole bundle of sticks, rather than individual sticks in the bundle.

The scholarship tends to overlook the significance of the words “for the public use” in providing context to the provision’s meaning. Most physical takings may easily be characterized as “for the public use.” For example, the government’s construction of a highway across private property takes title to private property for the public’s use. But regulatory takings are more difficult to characterize in this way. In Pennsylvania Coal, the regulation “taking” the value of the coal company’s ability to mine its land was not taking that property “for the public use” in the natural sense of those words. In fact, it took the company’s right to use its property for the public benefit. Takings for the public benefit are more appropriately characterized as exercises of the police power, for which compensation has not been required historically; the text of the Takings Clause does not address takings for the public benefit. Significantly, Professor Epstein notes, “To allow [a] form of indirect public benefit to satisfy the requirement for a public use is to make the requirement wholly empty.”

Unlike many other scholars, Natelson addresses the argument that the term “public use” limits takings to physical seizures in The Original Constitution. He asserts, “The claim that the founding-era meaning of ‘use’ was limited to possession is simply wrong.” He notes that “Giles Jacob’s Law Dictionary defined ‘use’ as ‘the profit or benefit of lands or tenements . . . .’ The law of uses was a long-established and well-known body of jurisprudence” governing “arrangements in which one person held title to property for ‘the use of’ (i.e., ‘the benefit of’) some other person.”

He also points to Article I, Section 10, Clause 2, which provides that if Congress consents to a state’s taxation of imports or exports, “the net Produce” of those taxes “shall be for the Use of the Treasury of the United States.” Natelson argues that “in other words,” this provision states “for the benefit of the Treasury of the United States.”

Natelson’s argument is persuasive; however, the narrow view is strongly supported otherwise. He admits, “The plain meaning of the word ‘take’ suggests” that the Takings Clause required compensation only for physical takings, “and history supports the plain meaning: Founding-era governments did not customarily compensate for the impact of regulations on market value.” Indeed, he concludes his discussion of the original meaning of the Takings Clause: “But no compensation was due if the federal government reduced the value of property by enacting a regulation.”

Historical evidence supports the narrow view. First, the power of eminent domain and the regulation of land uses and private property existed to a “significant degree” in colonial America. For example, colonial Virginia’s statutes authorized the seizure of processed tobacco of less than premium quality without compensation to protect “the state’s reputation as a producer of quality tobacco.” Several colonies had zoning regulations that prohibited the operation of businesses like slaughter-houses or bakeries in all but certain parts of major cities and imposed penalties for violations. Hartford, Connecticut’s city council “prohibited erecting anywhere in the city ‘any Barn, Wood-House, Carriage-House, Shed . . . or other Out Houses whatsoever, Shops and Store-Houses only excepted . . . within Three Rods of the front of any of the Public Streets or Highways.’” “[I]t does not appear that these property regulations were significantly criticized or thought undesirable when the Constitution was enacted.” As Professor Gold notes that “it would be incorrect to assume that the Takings Clause failed to mention regulatory takings because land use regulation was unheard of in the Founding Era.”

All the colonies except Massachusetts allowed the colonial government to take title to undeveloped land to build roads without compensation. None of the colonial charters recognized a right to compensation when private or real property was taken. The decision to take title or possession of real property and to provide compensation was committed to the local democratic process. This practice can be traced back to Magna Carta, which stated, “No free man shall be . . . dispossessed . . . except by the legal judgment of his peers or by the law of the land.” This provision seems to require a bare procedural due process requirement for physical and nonphysical takings. While none of the state constitutions that were adopted in 1776 required compensation for takings, three state constitutions contained provisions about eminent domain. These clauses provided that the consent of the owner or the legislature was sufficient to authorize the state’s exercise of the eminent domain power.

The Vermont Constitution of 1777 was the first state constitution to require compensation for takings, and context certainly informs its meaning. The colonists who lived in what is now Vermont were originally governed by the New Hampshire colonial government, which issued them land grants. But the British government transferred government of this land to the New York colonial government, which refused to recognize the New Hampshire land grants. Indeed, New York courts ruled that the land grants were null and void, and the colonial government created a process for the Vermonters to receive new grants for a much higher price. In response to the Vermonters’ resistance, the New York legislature passed an act that criminalized remaining on the land without complying with the terms of the new grants, and it authorized “execution of death against those inhabitants in said district, that they should judge to be offenders, without trial.” Given this history, the drafters of the Vermont Constitution included a substantive right to just compensation for title to land because they knew that political minorities were vulnerable to the political process when it comes to takings.

There are no early judicial interpretations of Vermont’s just compensation requirement. But early state courts interpreted the Takings Clause in the U.S. Constitution, and beginning in the late nineteenth century, the Supreme Court interpreted it as well. Dean Treanor acknowledges that state courts repeatedly required compensation for revocations of franchises, which are intangible property rights. At times, state courts compensated consequential takings as well, such as damages “from activities that did not involve physical invasions or appropriations of property for a public use, but that nonetheless had physical consequences, such as subsidence occasioned by a road-building project . . . .” Nonetheless, Dean Treanor’s research shows that the “dominant approach” was for state courts to require compensation only for government appropriations or invasions of property.

The closest the Supreme Court came to ruling on the question of nonphysical takings before Pennsylvania Coal was in 1872 when it decided Pumpelly v. Green Bay Co. Under a Wisconsin state statute, the Green Bay Company constructed a dam. The construction caused Pumpelly’s land to flood, so Pumpelly sued, alleging that the damage required just compensation under the takings clause in Wisconsin’s constitution. The Supreme Court held that its interpretation of Wisconsin’s takings clause was the same as its interpretation of the federal Takings Clause. The Court rejected the argument that Pumpelly’s land had not been taken or appropriated, noting,

It would be a very . . . unsatisfactory result, if . . . it shall be held that if the government refrains from the absolute conversion of real property . . . it can destroy its value entirely . . . without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use.

The Court limited its holding to circumstances in which property “is actually invaded by . . . water, earth, sand, or other material, or by having any artificial structure placed on it, . . . to effectually destroy or impair its usefulness.” Although the Pumpelly Court acknowledged that just compensation may be required for a taking of the right to use property, its holding remains limited to the dominant principle that there was “no taking without a touching.”

Supporters of the narrow view can cite to stronger, more objective evidence that at the time the Takings Clause was drafted, its public meaning required compensation for physical takings only. Early Americans were familiar with regulations that affected the value of property but deemed the due process afforded by legislative decision-making sufficient to address any unfairness to landowners. Although there is evidence of state courts straying from the norm and awarding compensation for takings of intangible property rights, on the whole, the law was “settled that, to entitle the owner to protection under this clause, the property must be actually taken in the physical sense of the word.” The lack of debate at the Constitutional Convention surrounding the inclusion of the Takings Clause in the Constitution or its language “suggests that the Takings Clause was not adopting new principles that were inconsistent with the existing legal regime.”

C. How Do We Come to a Conclusion as to the Takings Clause’s Original Public Meaning?

Historical evidence arguably supports both the broader view and the narrow view. Much of the debate is about which historical sources to favor. Professor Ilan Wurman, an originalist, notes,

No originalist disputes that the Constitution is sometimes . . . hard to interpret. No one disputes that different readers––even at the time of the Founding––might have or have had different understandings of the text. The point is only that each word still has a standard, objective, and public meaning; that conventional usage limits what we can do with the words; and some interpretations are better than others.

The narrow view is more faithful to the “conventional usage limits” to which Professor Wurman refers. There is strong historical evidence that the decision to compensate for damages resulting from the exercise of the eminent domain power or the regulation of land uses was committed to the political process prior to the Constitutional Convention. Indeed, states did not immediately stop taking property without compensation when the Takings Clause was adopted. At most, the evidence supporting the broader view shows that the text and legal philosophy contemporary with the Takings Clause does not preclude a compensation requirement for regulatory takings. It cannot affirmatively demonstrate that the original public meaning of the phrase “nor shall private property be taken for public use, without just compensation” required compensation for regulations affecting the value of property. Professor Rappaport asserts,

Where the ordinary meaning of the words allows both a narrow and broad interpretation, and where the existing legal landscape would be significantly inconsistent with the broad interpretation, there is a strong case for concluding that the narrow meaning was the original meaning unless there is evidence that the enactors sought to change the legal landscape.

Thus, an originalist interpretation of the Takings Clause likely requires compensation for physical takings only. And even if the debate cannot be settled conclusively, originalists would counsel judicial restraint in the arena of interpreting the Takings Clause. Therefore, judges should find that in cases of nonphysical takings, the decision to compensate is best left to the political process. Significantly, this practice would be consistent with the legal regime at the time of the Founding.

IV. Why Is the Takings Clause a Problem?

The Takings Clause of the Constitution poses a unique challenge to originalism. The most plausible originalist interpretation of the text is at odds with modern conservatives’ views about the relationship between government and private property. For the most part, an originalist understanding of the Constitution protects the typical conservative position. For example, an originalist would say that the Eighth Amendment does not prohibit capital punishment because states practiced capital punishment widely at the time the Constitution was ratified. Therefore, it is extremely unlikely that an American in 1790 would believe the death penalty to be “cruel and unusual” punishment for serious offenses. Under the original public meaning of that amendment, the death penalty is a constitutional exercise of government power. This understanding is convenient for the popular conservative platform, which often expresses a commitment to being tough on crime.

Similarly, the Supreme Court used an archetypal originalist analysis of the Second Amendment to conclude that it protects the individual right to possess a firearm. Justice Scalia’s analysis is a slam-dunk; the historical meaning of the Second Amendment’s plain language undoubtedly protects an individual right to keep and bear arms for self-protection. Again, the originalist understanding is well-suited to the conservative position, which tends to oppose gun-control legislation. The Second Amendment is the Holy Grail to a pro-gun-rights conservative. Its plain language, originally understood, offers broad, unequivocal protection for the right to possess a gun.

For the environmentalist who supports state and local governments’ power to regulate land uses, the Takings Clause seems like the Holy Grail. Although it unquestionably protects a landowner’s right to fair market value for her property if the government repossesses it in an eminent domain action, the text of the amendment, on its face, provides no further protection. Just as the Second Amendment does not create a caveat permitting regulation if gun violence ever exceeds a tolerable threshold, the Takings Clause does not address the reality that government action can affect the value of private property to such an extent that fairness arguably would require compensation.

It is often the politically liberal position that benefits from constitutional interpretations that go beyond the original meaning. For example, in Griswold v. Connecticut, the Supreme Court struck down as unconstitutional a state law that imposed a fine and possible imprisonment on any person who used contraception. Justice Douglas famously reasoned that the guarantees found in the Bill of Rights created “penumbras, formed by emanations from those guarantees that help give them life and substance.” He asserted that the specific guarantees of the First, Third, Fourth, Fifth, and Ninth Amendments created a zone of privacy, and that a married couple’s use of contraception fell within this zone. Impliedly invoking the rights of expression and association, Justice Douglas concluded the opinion,

We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

The opinion persuades the reader that a law regulating a married couple’s decision not to have children is repugnant to the spirit of the Constitution, or the embodiment of the ideals we generally understand it to represent. But the opinion does not persuade its audience that an ordinary person reading the Constitution in 1789 would understand that document to protect “the sacred precincts of marital bedrooms” from state-sanctioned search. Justice Douglas does not analyze the Constitution’s text or its history sufficiently to answer that question.

The liberal position benefits from Griswold’s bird’s-eye view of the Constitution’s principles. As a practical matter, the more-progressive-than-not political party will benefit from interpretations that treat the Constitution as a document whose principles are capable of evolution. If the Supreme Court chose not to find a constitutional right to use contraception in Griswold and in Eisenstadt v. Baird, the right would be subject to the electoral and legislative processes, and these processes could result in the abrogation of the right. Originalists would maintain that this result is what the Framers of the Constitution desired. The Bill of Rights and the Civil War Amendments “do not cover all possible or even desirable liberties.” The Constitution charges the judiciary with protecting the limited liberties enumerated in these amendments, and democratic institutions govern everything else. Progressives in the 1960s welcomed a ruling that the right to use contraception was constitutionally protected because it removed the issue from the fickle political realm.

In the context of the Takings Clause, however, it is the party traditionally concerned with the protection of private property that would benefit from judicial activism. The textual protections of the Takings Clause do not extend to all situations in which it would be desirable to compensate a landowner for loss resulting from government action. But as Professor Wurman puts it,

We live in a democracy, and so we the people get to decide important public policy questions through our elected representatives, except where we the people have already decided to keep such power from our legislators in the Constitution. And what we the people decided to withhold from our government is what we originally . . . understood to be withholding.

The original public meaning of the Takings Clause withheld only the power to take title or possession of private property. Therefore, under an originalist reading, the decision to compensate for regulatory takings belongs to the legislature.

V. Can the Court’s Takings Jurisprudence Be Reconciled with Originalism?

The originalists currently serving on the Supreme Court are vulnerable to criticism for their unwillingness to adhere to, or even address, an originalist interpretation of the Takings Clause while simultaneously demonstrating a willingness to overthrow, for example, Contracts Clause jurisprudence and the nondelegation doctrine. Significantly, Justice Thomas asserted in his dissent in Murr v. Wisconsin, “I join the Chief Justice’s dissent because it correctly applies this Court’s regulatory takings precedents . . . . The Court, however, has never purported to ground those precedents in the Constitution as it was originally understood.” For example, in a recent case, Cedar Point Nursery v. Hassid, the Supreme Court’s originalists ignored the Takings Clause’s text and joined a decision that relied on nonoriginalist precedent to hold that a government regulation granting a right to invade another’s real property is per se a physical taking.

In Cedar Point Nursery, a California state agency passed a regulation granting labor organizations the right to access a nursery’s property to meet with its migrant employees. The regulation authorized the labor organizations to access the property “for three hours per day, 120 days per year.” Cedar Point Nursery sued the agency, alleging that the regulation violated the Takings Clause because the grant of physical access to the organizations was a physical taking that required just compensation. Joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, Chief Justice Roberts held that a regulation granting a right to invade another’s property for a limited period of time is per se a physical taking.

Chief Justice Roberts did not analyze the meaning of the Fifth Amendment’s text. Instead, he relied on late-twentieth-century precedent that stands for the proposition that “the right to exclude is ‘universally held to be a fundamental element of the property right,’ and is ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’” The Chief Justice reasoned, “Given the central importance to property ownership of the right to exclude, it comes as little surprise that the Court has long treated government-authorized physical invasions as takings requiring just compensation.” He then described several cases, the earliest of which was decided in 1946, in which the Court held that a physical invasion of property required compensation under the Takings Clause. Chief Justice Roberts dismissed the argument that in one of these cases, Loretto v. Teleprompter Manhattan CATV Corp., the Court contrasted permanent physical occupations with “‘temporary limitations on the right to exclude,’ and [the Loretto Court] stated that, ‘[n]ot every physical invasion is a taking.’” He responded that, in Nollan v. California Coastal Commission, the Court held that a physical invasion may be a taking “even though no particular individual is permitted to station himself permanently upon the premises.” Similarly, he noted that the Court has recognized takings even if the physical invasions “are intermittent as opposed to continuous.”

The Cedar Point Nursery opinion does not lack all foundation in the Supreme Court’s jurisprudence. But it is also not an originalist opinion. The Chief Justice cites Blackstone to support his claim that the right to exclude is an important property right. He quotes John Adams: “[P]roperty must be secured, or liberty cannot exist.” Otherwise, his opinion relies on the Court’s twentieth-century precedent to support the holding.

Originalists should be mindful of their stance on the Takings Clause and its inconsistency with originalism. Critics of originalism note the theory’s convenience for its conservative supporters. Most originalists are conservative, and originalism generally benefits conservative ideologies. Where originalism does not benefit the conservative platform, do originalists stay true to the theory of interpretation? In the context of the Takings Clause, there is evidence they do not.

Nonetheless, the Court’s takings jurisprudence may be reconciled with originalism through Justice Scalia’s “pragmatic exception,” stare decisis. Originalism does not require that courts abandon the doctrine of stare decisis. In his confirmation hearing, Justice Scalia asserted that some decisions are “‘so woven in the fabric of law’ that he would not touch them.” “He characterized some precedents as weaker and others stronger under the doctrine of stare decisis, and said that the weight a precedent carries ‘depends on the nature of the precedent, the nature of the issue.’” Justice Scalia believed that “originalism will make a difference . . . not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpatious new ones.” Applying Justice Scalia’s principles, originalists could argue that while Pennsylvania Coal departed from the original understanding of the Takings Clause, regulatory takings have become “woven into the fabric of our law”; therefore, the cases recognizing them should stand under stare decisis.

The Supreme Court’s originalists may not be able to make this argument in good faith. The context of regulatory takings is no less political than the contexts of abortion or the breadth of the administrative state. The doctrine of regulatory takings has thwarted local governments’ efforts to increase greenspace, accommodate pedestrian and biker traffic, and prevent the erosion of beaches, which are all responses to climate change and to concern for the environment. The difficulty of originalist justices returning the issue of abortion rights to state legislatures in spite of stare decisis, while reserving for themselves the decision of whether to compensate for a regulation that affects the value of land, is undeniable. Indeed, the inconsistency is notable where the historical evidence suggests that the Framers were familiar with a regime in which local democracy governed the question of compensation for nonphysical takings.

The originalist justices should incorporate into their takings decisions the arguments put forth by originalist scholars who support the broader view of the Takings Clause. These arguments are not disingenuous; there is certainly more historical evidence to show that the concept of compensating nonphysical takings was not foreign to early American society than there is to support a substantive right to abortion or the delegation of legislative authority. Although stronger evidence supports the narrow view, reliance on the evidence supporting the broader view is better than abandoning originalist analyses when they are inconsistent with the justices’ political ideals. To protect the legitimacy of originalism, its proponents should urge the originalists on the Court to address originalism’s Achilles heel. The failure to do so emboldens one of originalism’s most poignant criticisms: that it is a conservative power-grab disguised as an apolitical, objective theory of constitutional interpretation.