December 7, 2009

What are Lucas’ ‘background principles?’

By What are Lucas’ ‘background principles?’

Author: Luke Wake

In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the court held that a state could not deny a landowner all economically beneficial use of a property; however, it made an exception for regulations which were permitted by "background principles of the state’s property and nuisance" law.

But what exactly are ‘background principles?’ This question may be resolved soon, as the U.S. Supreme Court heard oral arguments last week in a case which may expound upon, or entirely reject, the notion of ‘background principles.’ While there is great debate as to what ‘back ground principles’ entail, Pacific Legal Foundation argued, as amicus curiae, in Stop The Beach Renourishment, Inc., v. Florida Department of Environmental Protection that a state court cannot negate existing background principles.

The discussion of ‘background principles’ rests upon the notion that the state determines property rights, and the Fifth Amendment merely prohibits the taking of already established property rights. Thus state courts are in the curious position of determining what property rights are, and thereafter determining whether a state action has taken those property rights. In light of the confusion surrounding the concept of ‘background principles,’ property rights advocates are concerned that state courts may be tempted to retroactively define ‘background principles.’

Some argue that ‘background principles’ entail the existing law (both common law and statute) at the time a given property is acquired; however, the predominant scholarly view suggests that ‘background principles’ are the foundations of state law which existed at the time the Constitution was ratified. But that raises the question as to what were the foundations of state law in 1787? What is to stop a state court from circumventing the Fifth Amendment entirely by declaring that a landowner’s property rights have never actually existed in that state?

We addressed that issue in Stop The Beach Renourishment, arguing that the state courts are not free to negate existing ‘background principles.’ The court cannot simply retroactively declare ‘background principles.’

The Supreme Court will soon decide Stop The Beach Renourishment and will likely address whether a state court’s finding of a 'background principle' may so drastically depart from established law, and settled expectations, as to constitute a judicial taking under the Fifth Amendment.

For more on these issues I recommend the following article in the Valparaiso Law Review:

David L. Callies & J. David Breemer, Selected Legal and Policy Trends in Takings Law: Background Principles, Custom and Public Trust "Exceptions" and the (Mis)use of Investment-Backed Expectations, 36 Val. U. L. Rev. 339, (2002).

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