Yes, Justice Thomas, the doctrine of regulatory takings is originalist

July 02, 2017 | By JAMES BURLING

In his dissent in Murr v. Wisconsin, Justice Thomas opined that “[t]he Court, however, has never purported to ground those precedents in the Constitution as it was originally understood.” and “[i]n my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment.”

With all due respect to Justice Thomas, and we respect him greatly, this might not be necessary. The often-espoused notion that the doctrine of regulatory takings sprang forth from the head of Justice Holmes in Pennsylvania Coal v. Mahon is wrong. After this idea was put forth by Justice Scalia (of all people) in Lucas v. South Carolina Coastal Council, a number of scholars set out to refute it, on both historical and doctrinal grounds. Rather than repeat these arguments at length, what follows is a partial list of some of the better scholarly arguments, pro and con, on the subject.

First, articles in favor of the argument that originalism is incompatible the doctrine of regulatory takings are these: 

  • William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Colum. L. Rev. 782 (1995).
  • John F. Hart, Fish, Dams, and James Madison: Eighteenth-century Species,  63 MDLR 287, Maryland Law Review, (2004);  John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 Hard. L. Rev. 1252 (1996)

Second, articles in favor the argument that originalism is compatible with the doctrine of regulatory takings:

  • Kris W. Kobach, The Origins of Regulatory Takings: Setting the Record Straight, 1996 Utah Law Review 1211.
  • David A. Thomas, Finding More Pieces for the Takings Puzzle: How Correcting History Can Clarify Doctrine, 75 U. Colo. L. Rev. 497 (2004)
  • Andrew S. Gold, Regulatory Takings and Original Intent: The Direct, Physical Takings Thesis “Goes Too Far”, 49 Am. U. L. Rev. 181 (1999)
  • Eric R. Claeys, Takings, Regulations, and Natural Property Rights, 88 Cornell L. Rev. 1549 (2003)
  • Edward H. Trompke, Originalism Supports Compensation for “Regulatory Takings” “That ‘Shot in the Arm’ May Be a Lethal Injection,”40 Willamette L. Rev. 627 (2004)
  • Paul J. Larkin, Jr., The Original Understanding of “Property” in the Constitution, 100 Marq. L. Rev. 1 (2016).

These sources are a good start. Read them and you should be convinced that a fresh look isn’t required. What would be useful for the Justices, their clerks, and lawyers to read these excellent articles (well at least the last six are excellent) and recognize that the doctrine of regulatory takings is part and parcel of our Constitution and has been for a long time. Murr was a bad mistake, one that we suspect will be short-lived, but the doctrine of regulatory takings is not.