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Published online by Cambridge University Press: 09 June 2015
The issues surrounding governmental interference with the rights of private property have been a source of recurrent conflict throughout American social and political history. From Revolutionary-Era debtor relief laws, to early nineteenth-century legislative grants of private monopolistic and condemnatory powers, to the great abolitionist struggles of the Civil War Era, to the rise of the twentieth century’s regulatory state, bitter rhetorical and political wars have been waged about the nature, extent, and sanctity of claimed individual rights of private property.
I would like to thank Katharine Bartlett, Richard N. Bronaugh, Thatcher Freund, Alon Harel, Donald Horowitz, Carol Rose, Jed Rubenfeld, Chris Schroeder, Joseph William Singer, William Van Alstyne, and André van der Walt for their comments on prior versions of this paper.
1. See Ely, James W. Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights (New York: Oxford University Press, 1992) at 37, 41.Google Scholar
2. See Horwitz, Morton J. The Transformation of American Law 1780-1860 (Cambridge: Harvard University Press, 1977) at 47–53, 122-39;Google Scholar Scott, William B. In Pursuit of Happiness: American Conceptions of Property from the Seventeenth to the Twentieth Century (Bloomington: Indiana University Press, 1977) at 137–58.Google Scholar
3. See, e.g., Cover, Robert M. Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1977) passim; Scott, supra note 2 at 94–113.Google Scholar
4. See Ely, supra note 1 at 101–34; Friedman, Lawrence M. A History of American Law (New York: Simon & Schuster, Inc., 1985) at 439–66.Google Scholar
5. See, e.g., Van der Walt, A.J. “Subject and Society in Property Theory—A Review of Property Theories and Debates in Recent Literature: Part II,” 1995–2 J. of S. African L. 322 at 332 Google Scholar (discussing the “typically American” framing of property issues in terms of the “constitutional struggle about takings and due process”).
6. Of course, one could argue that the state is nonetheless (inevitably) involved, through the threat or use of its enforcement powers. See, e.g., Cohen, Felix “Dialogue on Private Property” (1954) 9 Rutgers L. Rev. 357 at 374.Google Scholar
7. For an interesting discussion of the history of property in American life, as mirrored through constitutional issues, see Ely, supra note 1 passim.
8. See, e.g., U.S. CONST, art. 1, sec. 10 (“No State shall… pass any … Law impairing the Obligation of Contracts ....”); ibid, amend. V (“No person shall be… deprived of… property,without due process of law; nor shall private property be taken for public use without just compensation.”); ibid, amend. XIV, sec. 1 (“[N]or shall any State deprive any person of… property, without due process of law….”).
9. See, supra note 8. This amendment has been held to apply to the activities ofthe individual states through the “incorporation” theory of the Fourteenth Amendment to the United States Constitution. See Dolan v. City of Tigard, 114 S.Ct. 2309, 2316 (1994); United States ex rel. TVA v. Powelson, 319 U.S. 266, 278-79 (1943); Chicago, Burlington, & Qtiincy Ry. Co. v. Chicago, 166 U.S. 226, 235–41 (1897).
10. Initiatives on the national level include the Private Property Protection Act, H.R. 925, 104th Cong., I st Sess. (1995) (passed by the House of Representatives on March 3, 1995) (awards property owners compensation for diminutions in value of the affected “portion” of property by 20 percent or more, caused by enforcement of the Federal Water Pollution Control Act, the Endangered Species Act, the Food Security Act, and other laws); the Private Property Rights Act, S. 22, 104th Cong., 1st Sess. (1995) (requires a “takings impact analysis” for every federal policy, regulation, or proposed law that is likely to diminish the value of property or result in its taking under the Constitution); Private Property Rights Restoration Act, S. 145, 104th Cong., 1st Sess. (1995) (requires the compensation of owners whose land is devalued 25% or more, or more than $10,000, due to government regulation); Property Rights Litigation Relief Act, S. 135, H.R. 489, 104th Cong., 1st Sess. (1995) (establishes standards for takings claims and eliminates jurisdictional disputes between federal courts and the U.S. Court of Federal Claims); Private Property Owners Bill of Rights, S. 239, H.R. 790, 104th Cong., 1st Sess. (1995) (requires the federal government to reimburse landowners when federal action to protect wetlands or endangered species results in a 50% reduction in property value); Job Creation and Wage Enhancement Act, H.R. 9, 104th Cong., 1st Sess. (1995) (awards property owners compensation for any reduction in the value of property that equals or exceeds 20% of the property’s value, if the reduction is a consequence of a regulatory limitation on an otherwise lawful use of the property). It was recently estimated that between 80 and 90 bills addressing property rights were also introduced in the legislatures of 30 states during 1994. Ripley, John “Property Rights Advocates Now More Hopeful” (November 26, 1994) Bangor Daily News 1.Google Scholar
One prominent academic commentator has testified that the failure of the Supreme Courtto “formulate meaningful standards” for regulatory takings questions and to ”put some teeth into the [TJakings [C]lause” renders a legislative response such as the Private Property Rights Act an appropriate one. Hearing Before the Subcomm. on the Constitution, House Comm. on the Judiciary,104th Cong., 1st Sess. (1995) [Feb. 10, 1995] (statement of Prof. James W. Ely, Jr.).
11. In the words of Representative Newt Gingrich, Speaker of the United States House of Representatives:
[P]eople had family ranches that were three and four generations old[.] [T]hey suddenly had a bureaucrat show up from Washington and say, “I now control how you live on your family property. You can’t take me to court, you will not get compensated[,] but I’ve just changed [the] total value of your family inheritance.” And people got into a rage. And across all of the West, in particular, you have people who are just enraged by the way in which they’ve been dealt with by government bureaucracies....[The Private Property Rights Act] is an effort to begin to re-balance ....
Rep. Newt Gingrich, “Daily News Conference” (March 3, 1995) Federal News Service. Nancie Marzulla, president of the organization “Defenders of Property Rights”,has argued that pending property rights bills “will help slay the regulatory monster.” Greenwire (January 6, 1995).
Clashes in ideas about property, individual rights, and governmental interference have led to an escalating rhetorical war. Recent public debate in the state of Florida istypical:
[Representative] Carlos Valdes said … [that] he is all too familiar with what happens to an individual’s property rights when government becomes too powerful.
“I had my family farm taken from [me]”, the Cuban immigrant and Republican State representative … told a rally of property rights advocates.
Overzealous regulation of private land, he said, is slowly doing in Florida what Castro’s revolution did in his native Cuba.
“I’ll be damned if I stand idle in this Capitol and let them take it away from us”, said Valdes, one of 54 lawmakers supporting the Private Property Rights Act.
Craig Quintans, “Property Rights Advocates Garner Support for State Bill” (February 10,1994) The Orlando Sentinel CI.
Angered by bills that would give more rights to property owners…, a group of North Florida environmentalists has proposed the “Pavers Bill of Rights”.
If Florida legislators … give more rights to developers, they should just let them pave the entire state and get it over with, say environmental activists….
Mocking supporters of the Private Property Rights Act, the group … has proposed a bill that would:
Eliminate all environmental permits “and let developers get on with the process of paving Florida.”
Remove all restrictions on dredging and filling shorelines, rivers, lakes, and swamps.
Allow the destruction of all vegetation.
Allow the elimination of all wildlife except for examples in museums, zoos, and aquariums.
Eliminate all public notice requirements and ban citizen objections to development.
Lucy Morgan, “Pave State; Don’t Save It” (February 19, 1994) St. Petersburg Times 4B
12. Private Property Owners Bill of Rights, S. 239, H.R. 790, 104th Cong., 1st Sess. (1995).
13. Although compensation initiatives do not (by their terms) immunize private property from governmental interference, the prospect of governmental liability for the payment of billions of dollars to property owners affected by land use, environmental, safety, and other laws has powerful potential to crush many areas of established governmental regulation. In a press release touting the Private Property Rights Act, United States Senator Alan Simpson estimated that “[t]here are literally billions in claims filed against theFederal government by landowners who believe their private property has been taken by the Federal government without just compensation as required by the Constitution.” Sen. Alan Simpson, “Press Release” (March 3, 1994) Federal Document Clearing House, Inc. Congressional Press Releases. In Florida, for instance, a coalition of growthmanagement groups estimated that the proposed Florida Private Property Rights Act would require $16.7 billion a year in state, county, and local compensation, if existing environmental and planning laws wereto remain in force. Craig Quintana, “Property Rights Advocates Garner Support for State Bill” (February 10, 1994) The Orlando Sentinel CI. See also Hilts, Philip D. “Study Pinpoints Death Risks From Small-Particle Pollution” (March 10, 1995)Google Scholar The New York Times A20 (regulation of small particle pollution, recently shown to “cost[] tens of thousands of American lives each year”, would be precluded by property-rights legislation pending in Congress).
Such concerns are not limited to the United States. See, e.g., Bonyhady, Tim “Property Rights” in Bonyhady, Tim ed., Environmental Protection and Legal Change (Sydney: TheFederation Press, 1992) 41 at 48 Google Scholar (“This question of compensation dwarfs all other issues when one comes to consider the effect of Australian environmental law on property law.”).
14. The Supreme Court’s opinion in Mugler v. Kansas, 123 U.S. 623 (1887), is generally considered to mark the beginning of modem takings law in the United States. See, e.g., Sax, Joseph L. “Takings, Private Property and Public Rights“ (1971) 81 Yale L.J. 149 CrossRefGoogle Scholar at 149 n.3 [hereinafter “Takings, Private Property and Public Rights”]. Since the advent of that opinion, more than eighty decisions construing the Takings Clause have been issued by the Court. Important decisions include Dolan v. City ofTigard, supra note 9; Lucas v. South Carolina Coastal Council, 112 S.Ct. 2886 (1992); Duquesne Light Co. v. Barasch, 488 U.S. 299 (1989); Bowen v. Gilliard, 483 U.S. 587 (1987); First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987); Hodel v. Irving, 481 U.S. 704 (1987); Keystone Bituminous Coal Ass’n v. DeBenedictis,480 U.S. 470(1987); Nollan v. California Coastal Ciumn’n, 483 U.S. 825 (1987); Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41 (1986); Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984); Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984); Loretto v. TeleprompterManhattan CATVCorp., 458 U.S. 419 (1982); Agins v. Tiburon, 447 U.S. 255 (1980); Prune Yard Shopping Ctr. v. Robins,447 U.S. 74(1980); Andrus v. AIlard, 444 U.S. 51 (1979); Kaiser Aetna v. United States, 444 U.S. 164 (1979); Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978); Armstrong v. United States, 364 U.S. 40 (1960); United States v. Central Eureka Mining Co., 357 U.S. 155 (1958); United Slates v. Causby, 328 U.S. 256 (1946); UnitedStates v. General Motors Corp., 323 U.S. 373 (1945); United States v. Willow River Power Co., 324 U.S. 499 (1945); Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); James Everard’s Breweries v. Day, 265 U.S. 545 (1924); Omnia Commercial Co., Inc. v. UnitedStates, 261 U.S. 502 (1923); Pennsylvania Coal Co. v. Malum, 260 U.S. 393 (1922); Block v. Hirsh, 256 U.S. 135 (1921); Hadacheck v. Sebastian, 239 U.S. 394 (1915); Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908); Powell v. Pennsylvania, 127 U.S. 678(1888).
Repeated efforts by the Supreme Court to articulate workable principles for decisions under the Takings Clause have resulted in a body of law of profound doctrinal incoherence. If there is any point of agreement, it is perhaps with Justice Brennan’s observation that “[t]he question of what constitutes a ‘taking’ [of property] for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty.” Penn Central Transp. Co. v. New York City, supra at 123.
For trenchant critiques of the development and current state of the Supreme Court’s takings doctrine, see, e.g., Bruce A. Ackerman, Private Property and the Constitution (New Haven: Yale University Press, 1977) at 113-67; Alexander, Gregory S. “Takings, Narratives and Power” (1988) 88 Colum. L. Rev. 1752;CrossRefGoogle Scholar Epstein, Richard A. “Takings: Descent and Resurrection” 1987 Sup. Ct. Rev. 1;Google Scholar Lunney, Glynn S. Jr ., “A Critical Reexamination of the Takings Jurisprudence” (1992) 90 Mich. L. Rev. 1892;CrossRefGoogle Scholar Michelman, Frank “Takings, 1987” (1988), 88 Colum. L. Rev. 1600;CrossRefGoogle Scholar Minda, Gary “The Dilemmas of Property and Sovereignty in the Postmodern Era: The Regulatory Takings Problem” (1991) 62 U. Colo. L. Rev. 599 at 604–15;Google Scholar Paul, Jeremy “The Hidden Structure of Takings Law” (1991) 64 S. Cal. L. Rev. 1393;Google Scholar Peterson, Andrea L. “The Takings Clause: In Search of Underlying Principles (pt. 1)” (1989) 77 Cal. L. Rev. 1299 at 1305–41;CrossRefGoogle Scholar Rose, Carol M. “Mahon Reconstructed: Why the Takings Issue is Still a Muddle” (1984) 57 S. Cal. L. Rev. 561;Google Scholar Rubenfeld, Jed “Usings” (1993) 102 Yale L.J. 1077 at 1088–94;CrossRefGoogle Scholar Sax, Joseph L. “Takings and the Police Power” (1964) 74 Yale L.J. 36 at 38–46CrossRefGoogle Scholar [hereinafter “Takings and the Police Power”]; Singer, Joseph William & Beermann, Jack M. “The Social Origins of Property” (1993) 6 Canadian J.L. & Juris. 217 at 220–28. CrossRefGoogle Scholar
15. See, e.g., Epstein, Richard Takings: Private Property and the Power of Eminent Domain (Cambridge: Harvard University Press, 1985) at 5‒31 Google Scholar (advancing natural rights, contractarian, and historical theories); Munzer, Stephen R. A Theory of Property (Cambridge: Cambridge University Press, 1990) at 425–36Google Scholar (compensation questions should be considered in light of principles of utility, efficiency, justice, equality, and “desert”-based labor); Blume, Lawrence & Rubinfeld, Daniel L. “Compensation for Takings: An Economic Analysis” (1984) 72 Cal. L. Rev. 569 CrossRefGoogle Scholar (evaluating the payment of compensation for regulatory takings against the goal of economic efficiency); Coleman, Jules L. “Corrective Justice and Property Rights” (1994) 11 Soc. Phil. & Pol–y 124 at 136–37CrossRefGoogle Scholar (distinguishing between systematic and non-systematic redistributive takings, in determining when compensation is required); Ellickson, Robert C. “Bringing Culture and Human Frailty to Rational Actors: A Critique of Classical Law and Economics” (1989) 65 Chi.-Kent L. Rev. 23 at 37–38.Google Scholar (discussing the role of psychological issues in takings cases); Farber, Daniel A. “Public Choice and Just Compensation” (1992) 9 Const. Commentary 279 Google Scholar (advocating a “uniformity theory” for regulatory takings); Fischel, William A. “Introduction: Utilitarian Balancing and Formalism in Takings” (1988) 88 Colum. L. Rev. 1581 Google Scholar (advocating an “economicutilitarian approach” to takings and land use); Fischel, William A. & Shapiro, Perry “Takings, Insurance, and Michelman: Comments on Economic Interpretations of ‘Just Compensation’ Law” (1988) 17 J. Legal Stud. 269 at 293CrossRefGoogle Scholar (arguing that theories of moral hazard and risk aversion “may illuminate the taking question”); Michelman, Frank I. “Property, Utility, and Fairness: Comments on the Ethical Foundations of ‘Just Compensation’ Law” (1967) 80 Harv. L. Rev. 1165 at 1173–83, 1214–57CrossRefGoogle Scholar (advocating use of an economic calculus which considers the “efficiency gains” of the governmental action, the “settlement costs” involved in evaluating injuries, and the “demoralization costs” of uncompensated takings); Radin, Margaret Jane “The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings” (1988) 88 Colum. L. Rev. 1667 CrossRefGoogle Scholar (arguing that a distinction between “personal” and “fungible” property generates takings guidelines); Nicolaus Tideman, T. “Takings, Moral Evolution, and Justice” (1988) 88 Colum. L. Rev. 1714 CrossRefGoogle Scholar (arguing that takings should be guided by a conception of justice that embodies “equality, stability, efficiency, and authority”).
16. See generally Rubenfeld, supra note 14. Cf. Sax, “Takings and the Police Power,” supra note 14 at 62–67 (distinguishing situations where losses to individual property owners arise from governmental activity which benefits a government enterprise, and those where losses arise from governmental efforts to mediate conflicting private claims—with the former compensable and the latter not).
17. See, e.g., Bonyhady, supra note 13 at 45 (“The broader the concept of ownership and property …, the more difficult it is for government to create new land use regimes .... [T]he more ownership and property are seen as limited rights, involving no more than the autonomy which society can afford individuals in particular contexts, the easier it is for government to constrain individuals for larger social ends … .”).
18. 114 S.Ct. 2309(1994).
19. Greenhouse, Linda “High Court Limits the Public Power on Private Land” (June 25, 1994) The New York Times A1.Google Scholar
20. Dolan v. City of Tigard, supra note 9 at 2315.
21. Ibid, at 2316.
22. Ibid.
23. Ibid, at 2317.
24. Ibid, at 2316.
25. Ibid. at2316n.6.
26. Ibid, at 2316.
27. 112 S.Ct. 2886(1992).
28. Ibid, at 2893.
29. Ibid, at 2894 n.7.
30. Ibid.
31. See, e.g., Michelman, supra note 14 at 1628; Peterson, supra note 14 at 1308-16; Singer & Beermann, supra note 14 at 217.
32. See proposed national and state legislation, supra note 10.
33. See, supra notes 10–13, and accompanying text.
34. Several commentators have explored the nature of property in the particular context of the Takings Clause. Particularly valuable work includes that by Ackerman, supra note 14 (describing “Ordinary Observing” and “Scientific Policymaking” approaches to property and takings questions); Alexander, Gregory S. “Takings and the Post-Modern Dialectic of Property” (1992) 9 Const. Commentary 259 at 264Google Scholar (discussing “self-regarding” and “communitarian” visions of property, which lead to “two different and incompatible understandings of… property rights”); Michelman, supra note Hat 1628 (discussing common understanding of property and its role in takings law); Michelman, Frank I. “Possession vs. Distribution in the Constitutional Idea of Property” (1987) 72 Iowa L. Rev. 1319 at 1349–50Google Scholar [hereinafter “Possession vs. Distribution”] (discussing the “troubled relation between property’s possessive and distributive sides”, in the context of the Takings Clause); Rose, supra note 14 at 587 (discussing a “fundamental tension” in American property tradition, due to the need to protect property expectations and to achieve socially desirable ends); Singer & Beermann, supra note 14 (discussing the dependence of property rights on instrumental and value judgments which should be expressly addressed in takings law).
35. Philbrick, Francis S. “Changing Conceptions of Property in Law” (1938) 86 U. Pa. L. Rev. 691 at 694.Google Scholar
36. See Underkuffler, Laura S. “On Property: An Essay” (1990) 100 Yale L.J. 127 at 128–33.CrossRefGoogle Scholar
37. See Ackerman, supra note 14 at 97–103 (describing the layperson’s “ordinary understanding” of the nature and function of property).
38. This understanding of property has been recognized and variously described by commentators. See, e.g., Ackerman, supra note 14 (describing the “Ordinary Observing” approach to property); Alexander, supra note 34 at 264 (discussing “self-regarding” vision of property); Michelman, “Possession vs. Distribution,” supra note 34 at 1349-50 (discussing property’s “possessive” understanding); Rose, supra note 14 at 587 (discussing the expectations-protecting understanding of property rights). See also Macpherson, C.B. “The Meaning of Property” in Macpherson, C.B. ed., Properly: Mainstream and Critical Positions (Toronto: University of Toronto Press, 1978)Google Scholar
I at 3 [hereinafter “The Meaning of Property”] (“[P]hilosophers, jurists, and political and social theorists have always treated property as a right…[,] an enforceable claim to some use or benefit of something.”).
The idea of property as the individual’s autonomous sphere, asserted against collective power, can be traced to ideas about self-ownership and the creation of individual rights in those parts of our environment with which we mix our labor or infuse our wills. See, e.g., Locke, John Two Treatises of Government [3rd ed. 1698] (Cambridge: Cambridge University Press, 1988)CrossRefGoogle Scholar, P. Laslett, ed., Sec. 27 at 287-88; Hegel, G.W.F. Elements of the Philosophy of Right (Cambridge: Cambridge University Press, 1991),Google Scholar Allen W. Wood, ed., Sees. 41–49, at 73–81. See also Ryan, Alan , “Self-Ownership, Autonomy, and Property Rights” (1994) 11 Soc. Phil. & Pol’y 241 at 242–54Google Scholar (discussing history of self-ownership ideas). Cf.Macpherson, C.B. The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Oxford University Press, 1962) at 3 Google Scholar (discussing assumption of seventeenth-century individualist political theory that an individual “is free inasmuch as he is proprietor of his own person and capacities”. Society, in this view, is a series of “relations of exchange between proprietors. Political society becomes a calculated device for the protection of this property and for the maintenance of an orderly relation of exchange”).
39. See Underkuffler, supra note 36 at 142, 144–45.
40. An example of this conception of property is the “historical” or “comprehensive” approach to property which I have previously described. Under this historical understanding, property embodies a broad range of human liberties within a collective context of support and restraint. Underkuffler, supra note 36 at 133-42. Other property notions which might be classified as belonging to this second, broad conception of property include older notions of property systems based upon ideas of trust and duties as well as rights. See, e.g., Macpherson, C.B. “Human Rights as Property Rights” (1977) 24 Dissent 72 at 76–77Google Scholar (describing broad, seventeenth-century understandings of property as including “the use[,]… development and enjoyment of human capacities” and “rights, enforced by law or custom, to a certain standard of life”); Philbrick, supra note 35 at 707–10 (discussing feudal origins of the idea that property ownership involves the assumption of duties, including public ones); Rose, Carol M. “Property as Wealth, Property as Propriety” in Chapman, John W. ed., Compensatory Justice: Nomos XXXIII (New York: New York University Press, 1991) 223 at 232–39 (discussing property as involving ideas of “propriety”, in the eighteenth century and before).Google Scholar
The idea that property may have more complex meanings is not something of only arcane, historical interest. Indeed, Kevin Gray has argued that the concept of property rests upon “an inner morality” which includes both individual and community concerns. Drawing upon old and new understandings of property, he argues that individual property rights must be seen as subject to the claims of “equitable property”, or the values of human dignity and “the sense of the reciprocal responsibility which each citizen owes to his or her community.” Gray, Kevin “Equitable Property” (1994) 47 Current Legal Prob. 157 at 208–09.CrossRefGoogle Scholar See also Honoré, A.M. “Ownership” in Guest, A.G. ed., Oxford Essays in Jurisprudence (Oxford: Clarendon Press, 1961) 107 Google Scholar (describing “liberal” conceptions and “social” conceptions of ownership); Rose, Carol M. “Environmental Lessons” (1994) 27 Loy. L.A.L. Rev. 1023 at 1042–43Google Scholar [hereinafter “Environmental Lessons”] (describing the origins of ideas of stewardship and trusteeship, commonly used in environmental discourse, in property-rights ideas); Joseph William Singer, “roperty and Social Relations: From Title to Entitlement,” 1995 METRO: Institute for Transnational Legal Research (manuscript at 15-22) [hereinafter “Property and Social Relations”] and Singer, Joseph William “Jobs and Justice: Rethinking the Stakeholder Debate” (1993) 43 U. Toronto L.J. 475 at 481–91CrossRefGoogle Scholar (arguing that notions of distributive justice are inherent in our common conceptions of property and property systems).
41. An objection could be made that the name for this dimension is misleading, since all of the dimensions that I identify (as well as the conceptions of property themselves) are, in fact, theoretical in nature. This is certainly true. However, in this essay the dimension of “theory” shall refer to the “theory of rights” that is used in a particular conception of property.
42. See, e.g., Lucas v. South Carolina Coastal Council, supra note 14 at 2901 (right to “essential use” of land); Hodel v. Irving, supra note 14 at 716 (right to devise, “part of the Anglo-American legal system since feudal times”); Keystone Bituminous Coal Ass’n v. DeBenedictis, supra note 14 at 496 (right to “economically viable use”); Loretto v. Teleprompter Manhattan CATV Corp., supra note 14 at 435 (“property rights in a physical thing” include the rights to possess, use, exclude, and dispose of it); Andrus v.Allard, supra note 14 at 64–65 (“traditional” rights of possession, exclusion, and other issues of disposition; “to possess and transport…,… to donate or devise”); Kaiser Aetna v. United States, supra note 14 at 176 (“rights that are commonly characterized as property”, including right to exclude); Penn Cent. Transp. Co. v. New York City, supra note 14 at 124 (right to preclude physical invasion); United States v. General Motors Corp., supra note 14 at 378 (rights “to possess, use and dispose”); Pennsylvania Coal Co. v. Mahon, supra note 14 at 414 (right to use).
This understanding, although traditional in nature, has occasionally implemented ideas of justice which were beyond the mores of the time. In 1917, the Court struck down a racially exclusionary municipal housing ordinance, on the ground that it violated the rights of property owners to sell to whom they pleased. “Property”, Justice Day wrote, “is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property.” Buchanan v. Warley, 245 U.S. 60, 74 (1917).
43. Agins v. Tiburon, supra note 14 at 262.
44. Nollan v. California Coastal Comm’n, supra note 14 at 831.
45. See, e.g., Lucas v. South Carolina Coastal Council, supra note 14 at 2903 (Kennedy, J., concurring in the judgment) (protected expectations “based on objective rules and customs that can be understood as reasonable by all parties involved”; such “reasonable expectations must be understood in the light of the whole of our legal tradition”); ibid, at 2914–17 (Blackmun, J., dissenting) (discussing eighteenth-and nineteenth-century understandings of rights incident to land ownership); Hodel v. Irving, supra note 14 at 715 (“investment-backed expectations”); Keystone Bituminous CoalAss’n v. DeBenedictis, supra note 14 at 499 (“financial-backed expectations”); Nollan v. California Coastal Comm’n, supra note 14 at 842, 847, 848 (Brennan, J., dissenting) (“reasonable expectations” possessed by landowners, and “settled public expectations”); Agins v. Tiburon, supra note 14 at 262 (“reasonable investment expectations”); Loretto v. Teleprompter Manhattan CATV Corp., supra note 14 at 441 (protection of “historically rooted” expectations); Kaiser Aetna v. United States, supra note 14 at 179 (discussing “a number of expectancies embodied in the concept of ‘property’”); Penn Cent. Transp. Co. v. New York City, supra note 14 at 124–25 (“distinct investment-backed expectations” and “reasonable expectations”).
46. See, e.g., Andrus v. Allard, supra note 14 at 64–66. Cf. Duquesne Light Co. v. Barasch, supra note 14 at 307–08 (right of public utilities to be free of governmentally imposed rates that are so low as to be “confiscatory”).
47. See, e.g., Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 602 (1935) (rights under an executed mortgage contract); Pennsylvania Coal Co. v. Mahon, supra note 14 at 414 (contract for sale of land subsurface rights).
48. See, e.g., Pennsylvania Coal Co. v. Mahon, supra note 14 at 414 (“support” estate recognized in Pennsylvania law).
49. See, e.g., Lucas v. South Carolina Coastal Council, supra note 14 at 2901, quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972) (describing “traditional resort to ‘existing rules or understandings that stem from an independent source such as state law’ to define the range of interests that qualify for protection as ‘property’ under the Fifth (and Fourteenth) [Ajmendments”); Nollan v. California Coastal Comm’n, supra note 14 at 857 (Brennan, J., dissenting) (“It is axiomatic … that state law is the source of those strands that constitute a property owner’s bundle of property rights.”); Prune Yard Shopping Center v. Robins, supra note 14 at 84 (“Nor as a general proposition is the United States, as opposed to the several States, possessed of residual authority that enable it to define ‘property’ in the first instance.”); Ruckleshaus v. Monsanto, supra note 14 at 1003 (interest in “health, safety, and environmental data” is “cognizable as a tradesecret property right under Missouri law”); Kaiser Aetna v. United States, supra note 14 at 178 and United States v. Willow River Power Co., supra note 14 at 502 (“economic advantages” which are “back[ed]” by law).
Most often, the “state law” in question is assumed to be the state common law, not state nodilory law. See, e.g., Lucas v. South Carolina Coastal Council, supra note 14 at 2900. Common law benefits are somehow seen as “natural”, and axiomatically entitled to protection; statutory ones are not. See Sunstein, Cass R. , “Lochner’s Legacy” (1987) 87 Colum. L. Rev. 873 CrossRefGoogle Scholar at 885. Such positivist models are often used until they conflict with other, “traditional” or natural rights theories. See generally Estlund, Cynthia L. “Labor, Property, and Sovereignty After Lechmere” (1994) 46 Stan. L. Rev. 305 at 341.CrossRefGoogle Scholar
50. See, e.g., Lucas v. South Carolina Coastal Council, supra note 14 at 2899, 2894 n.7, 2900 (‘“takings’ jurisprudence … has traditionally been guided by the understandings of our citizens” regarding the content of property rights; such “reasonable expectations have been shaped by the State’s law of property”—i.e., those “background principles of the State’s law of property and nuisance” in place when property was acquired).
The combination of expectations theories with positivist theories is an approach with old roots. See Bentham, Jeremy “Principles of Civil Code” in Ogden, C.K. ed., The Theory of Legislation (London: Trench, Trubner & Co., Ltd., 1931), at 111 Google Scholar (“The idea of property consists in an established expectation.” “[T]his expectation … can only be the work of law. 1 cannot count upon the enjoyment of that which I regard as mine, except through the promise of the law which guarantees it to me.”).
51. See, e.g., Becker, Lawrence C. Property Rights - Philosophic Foundations (Boston: Routledge & Kegan Paul, 1977) at 18 Google Scholar (property rights are “the rights of ownership”, including rights to use, transfer, and exclude); Ellickson, Robert C., Order Without Law: How Neighbors Settle Disputes (Cambridge: Harvard University Press, 1991) at 56–64,Google Scholar 240–64 (creation and enforcement of property rights on the basis of local custom and practice); Munzer, supra note 15 at 17– 23 (property as “a constellation of Hohfeldian elements [claim-rights, privileges, powers, and immunities], correlatives, and opposites”); Macpherson, “The Meaning of Property”, supra note 38 at 3 (property is “a right in the sense of an enforceable claim to some use or benefit of something”, “enforced by society or the state, by custom or convention or law”); Peterson, Andrea L. “The Takings Clause: In Search of Underlying Principles (pt. 2)” (1990) 78 Cal. L. Rev, 55 Google Scholar at 62 (property consists of the freedom to act in ways that are economically valuable, and any economically valuable legal rights created by federal, state, or local law); Reich, Charles “The New Property” (1964) 73 Yale L.J. 733 CrossRefGoogle Scholar at 771–87 (“functional” approach to property); Sax, Joseph L. “Liberating the Public Trust Doctrine from Its Historical Shackles” (1980) 14 U.C. Davis L. Rev. 185 Google Scholar at 186–87 (footnote omitted) (“The essence of property law is respect for reasonable expectations.”); Singer, Joseph William “The Reliance Interest in Property” (1988) 40 Stan. L. Rev. 614 CrossRefGoogle Scholar at 652–63 (relational interests, i.e., reliance interests established between people over time, as creating cognizable property rights). See also Harris, Cheryl I. “Whiteness as Property” (1993) 106 Harv. L. Rev. 1707 CrossRefGoogle Scholar at 1724–37 (analyzing various theories of property rights).
For a particularly interesting—and refreshingly objective—critique of these and other theories of property in the difficult and critical context of basic human rights, an emerging constitution, and land restitution issues, see Walt, André van der “Comparative Notes on the Constitutional Protection of Property Rights” in Lange, Roel de Maanen, Gerrit van & Walt, Johan van der eds, Human Rights and Property: A BUI of Rights in a Constitution for a New South Africa (Nijmegen: Ars Aequi Libri, 1993)39.Google Scholar
52. The idea of a “spatial dimension” for a conception of property is obviously, as a literal matter, more readily applicable to land or other corporeal property than it is to property of an incorporeal sort. Where incorporeal property is concerned, descriptions such as “scope”, “extent”, or “limits” might more appropriately identify this dimension.
53. See Lucas v. South Carolina Coastal Council, supra note 14 at 2892, quoting Legal Tender Cases, 12 Wall. 457, 551 (1871) (discussing historical assumption that “the Takings Clause reached only a ‘direct appropriation’ of property … or the functional equivalent of a ‘practical ouster of [the owner’s] possession’”); Transportation Co. v. Chicago, 99 U.S. 635, 642 (1879).
54. See Pennsylvania Coal Co. v. Mahon, supra note 14 at 415.
55. 438 U.S. 104(1978).
56. Ibid, at 130–31 (footnote omitted).
57. 480 U.S. 470(1987).
58. Ibid, at 498.
59. Ibid, at 514, 517 (Rehnquist, J., dissenting).
60. Lucas v. South Carolina Coastal Council, supra note 14 at 2894 n.7 (Scalia, J., writing for the majority) (“Regrettably, the rhetorical force of [the Court’s takings test]… is greater than its precision, since the rule does not make clear the ‘property interest’ against which the loss of value is to be measured. When, for example, a regulation requires a developer to leave 90% of a rural tract in its natural state, it is unclear whether we would analyze the situation as one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or as one in which the owner has suffered a mere diminution in value of the tract as a whole.”); ibid, at 2913 (Blackmun, J., dissenting) (“[W]hether the owner has been deprived of all economic value of his property will depend on how ‘property’ is defined. The ‘composition of the denominator in our “deprivation” fraction’… is the dispositive inquiry.”); and ibid, at 2919 (Stevens, J., dissenting) (“[B]ecause of the elastic nature of property rights”, “courts may define ‘property’ broadly and only rarely find regulations to effect total takings.” “The smaller the estate, the more likely that a regulatory change will effect a total taking.”).
61. For example, compare Loretto v. Teleprompter Manhattan CATV Corp., supra note 14 at 435 (right of apartment building owner to exclude entry by cable television company) with Prune Yard Shopping Or. v. Robins, supra note 14 (no right of shopping center owner to exclude entry by high school students distributing political leaflets).
62. This dimension has also been the subject of extensive discussion by analysts of takings problems. See, e.g., Michelman, supra note 14 at 1614; Michelman, supra note 15 at 1192; Rose, supra note 14 at 566–67; Sax, “Takings and the Police Power,” supra note 14 at 60. Margaret Radin has called this the problem of “conceptual severance”. See Radin, supra note 15 at 1676.
The “fragmentation” of property into particular rights, or into smaller, conceptually defined or geographically defined pieces, has generally been associated with greater protection of property from government. The “smaller” the property in question is deemed to be, the greater the impact (on that property) of the proposed governmental action—leading to the conclusion that government has gone “too far” and a taking has occurred. See Keystone Bituminous Coal Ass’n v. DeBenedictis, supra note 14 at 498; Lucas v. South Carolina Coastal Council, supra note 14 at 2894 n.7. However, as Morton Horwitz has so cogently observed, this can work in reverse as well. Regulation can, in fact, be legitimated through such reconceptualizations of property rights. By defining property rights more narrowly, more conflicting property rights are created, allowing the state’s action to be viewed as protection for (rather than mere destruction of) particular property rights. See Horwitz, Morton J. The Transformation of American Law 1870–1960 (New York: Oxford University Press, 1992) at 154–56.Google Scholar
63. See, e.g., Epstein, supra note 15 at 22–24.
64. Nedelsky, Jennifer “Reconceiving Autonomy: Sources, Thoughts, and Possibilities” (1989) 1 Yale J. L. & Feminism 7 Google Scholar at 17. Charles Reich described property as the “circle” drawn “around the activities of each private individual”, within which “he is master, and the state must explain and justify any interference.” Reich, supra note 51 at 771. See also Rubenfeld, supra note 14 at 1140 (footnote omitted) (describing this model as one example of the “fundamental rights” approach, which attempts “to erect a barricade around those spheres of life in which the individual must be left to make his own law, to determine or define himself”).
Reasons for protection of individual autonomy range from the need for the expression of the individual will through individual (external) action, see, e.g., Hegel, supra note 38, Secs. 41–53, at 73–84; Nozick, Robert Anarchy. Sale and Utopia (New York: Basic Books Inc., 1974)Google Scholar passim, to the creation of conditions necessary for the development of moral judgment, see, e.g., Rawls, John Political Liberalism (New York: Columbia University Press, 1993),Google Scholar to furtherance of “human flourishing” in a context with others. See, e.g., Radin, supra note 15 at 1687–88.
For a discussion of this “absolute” conception or approach to property, see Underkuffler, Laura S. “The Perfidy of Property” (1991) 70 Texas L. Rev. 293 Google Scholar at 306–07 [hereinafter “PerfidyD]; Underkuffler, supra note 36 at 130–33.
65. Gray, supra note 40 at 160.
66. Michelman, supra note 14 at 1626.
67. See, e.g., Epstein, supra note 15 at 35–56,93–104; Nedelsky, Jennifer, Private Properly and the Limits of American Constitutionalism: The Maclisonian Framework and Its Legacy (Chicago: University of Chicago Press, 1990) at 30;Google Scholar Nedelsky, Jennifer, “American Constitutionalism and the Paradox of Private Property” in Elster, Jon & Slagstad, Rune eds, Constitutionalism and Democracy (Cambridge: Cambridge University Press, 1988) 241 at 264–CrossRefGoogle Scholar 65 [hereinafter “Paradox”]. This has been called the “classical liberal” conception of property which, combined with the Takings Clause, works to immunize individual property rights against change. See Radin, supra note 15 at 1668.
68. Underkuffler, “Perfidy”, supra note 64 at 307.
69. See, supra text at notes 42–50.
70. See, e.g., Nollan v. California Coastal Comm–n, supra note 14 at 831 (public easement across private land would “no doubt… have been a taking”); Loretto v. Teleprompter Manhattan CATV Corp., supra note 14 at 436, 432 (“[Property law has long protected an owner–s expectation” of undisturbed possession; as a result, there is a “rule that any permanent physical occupation is a taking.”) (emphasis deleted).
Even those Justices who have rejected a positivist theory of property have sought to portray their conception in concrete terms. For example, Justice Marshall, in concurrence, wrote: … I do not understand the Court to suggest that rights of property are to be defined solely by state law, or that there is no federal constitutional barrier to the abrogation of commonlaw rights by Congress or a state government. The constitutional terms “life, liberty, and property” do not derive their meaning solely from the provisions of positive law. They have a normative dimension as well, establishing a sphere of private autonomy which government is bound to respect.
Prune Yard Shopping Ctr. v. Robins, supra note 14 at 93 (Marshall, J., concurring) (footnote omitted).
71. Lucas v. South Carolina Coastal Council, supra note 14 at 2900. See also Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980) (“[A] [s]tate… may not transform private property into public property without compensation.”).
72. 483 U.S. 825(1987).
73. Ibid at 857, 855. See also ibid, at 866 (Blackmun, J., dissenting) (“[n]o investment-backed expectations were diminished”, since “the Nollans had notice of the easement before they purchased the property and … public use of the beach had been permitted for decades”); Loretto v. Telepmmpier Manhattan CATV Corp., supra note 14 at 445 (Blackmun, J., dissenting) (arguing that a statute requiring construction of a cable television apparatus on landlord’s building was not a taking, since it “did not interfere with appellant’s reasonable investment-backed expectations”).
74. See, e.g., Lucas v. South Carolina Coastal Council, supra note 14 at 2899 (discussing the “bundle[ s] of rights” acquired by citizens “when they obtain title to property”); Nollan v. California Coastal Comm’n, supra note 14 at 847, 855 (Brennan, J., dissenting) (discussing landowner’s “reasonable” expectations at the moment of purchase, in view of existing encumbrances and laws); Penn Cent. Transp. Co. v. New York City, supra note 14 at 135-36 (discussing impact of the law on the building’s “present uses” and, hence, the owner’s “primary expectation”); Pennsylvania Coal Co. v. Mahon, supra note 14 at 413 (discussing modification of “existing rights”).
75. See, e.g., Hodel v. Irving, supra note 14 at 715–16 (discussing “investment-backed expectations” in land at the time of purchase, and rights which have inhered in property ownership as a “part of the Anglo-American legal system since feudal times”). See also Epstein, supra note 15 at 7–31 (proposing the use of the bundle of rights claimed to have been recpgnized in the American Founding Era).
76. An example of a common, temporally based limitation on land rights is provided by the theory of prescription or adverse possession. Under these rules, rights in land are lost to an encroacher, if the encroacher occupies or uses the land and other (generally statutorily defined) requirements are met. The idea that property interests can be gained or lost, through usage and time, is an old one. See Horwitz, supra note 2 at 43-44 (describing the eighteenth-century acquisition through prescription of rights to tolls, sunlight, water use, and trade).
77. In a series of recent cases, for instance, the Court has addressed whether an expressly reserved ability to change a “contractual right” previously conferred destroys any claim that this right is “property”. Commenting upon a federal social security “contract”, the Court stated: [T]he “contractual right” at issue in this case bears little, if any, resemblance to rights held to constitute “property” within the meaning of the Fifth Amendment. … [T]he provision was simply part of a regulatory program over which Congress retained authority to amend in the exercise of its power to provide for the general welfare. … [It] did not rise to the level of “property”.
Bowen v. Public Agencies Opposed to Social Security Entrapment, supra note 14 at 55. Under this model, an implied power by government to change what appear to be statutory entitlements will likewise defeat claims of deprivation of property (without just compensation). See, e.g., Bowen v. Gilliard, 483 U.S. 587,608 (1987), quoting Reichelderfer v. Quinn, 287 U.S. 315,319 (1932) (no property interest in statutory entitlements “subject to modification by ‘the public acts of government’”); Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649,651 (1976) (no property interest created by federal statute providing that in fifty years, mineral deposits “shall become the property of… [Indian allottees] or their heirs”); United States v. Fuller, 409 U.S. 488, 492 (1973) (no property interest in a federal grazing permit that is revocable, at will, by government).
78. See, e.g., Lucas v. South Carolina Coastal Council, supra note 14 at 2897, 2900-02.
79. As observed by Justice Holmes, “As long recognized, some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and due process clauses are gone.” Pennsylvania Coal Co. v. Malum, supra note 14 at 413 (emphasis added).
80. Cf. Paul, supra note 14 at 1404 (“Each governmental action … raises not only the question of whether values may be altered but also of which values should be treated as already established.”).
81. Keystone Bituminous Coal Ass’n v. DeBenedictis, supra note 14 at 499.
82. See Sax, “Takings, Private Property, and Public Rights,” supra note 14 at 150 (viewing property “as an interdependent network of competing uses, rather than as a number of independent and isolated entities”); Gray, supra note 40 at 161 (“[O]ur shorthand attributions of ‘ownership’ conceal only superficially the constant and comprehensive interpenetration of ‘property’ in the resources of the earth. It is an inevitable fact that all ‘property’ references have about them an utterly interdependent quality.”). “We can talk about a landowner having a property interest in ‘full enjoyment’ of his land, but in reality many of the potential uses (full enjoyment) of one tract are incompatible with full enjoyment of the adjacent tract. It is more accurate to describe property as the value which each owner has left after the inconsistencies … have been resolved.” Sax, “Takings and the Police Power”, supra note 14 at 61 (footnote omitted).
83. Macpherson, C.B., “The Meaning of Property”, supra note 38 at 11–12.Google Scholar
84. As Justice Stevens recently wrote: The human condition is one of constant learning and evolution—both moral and practical. Legislatures implement that new learning; in doing so they must often revise the definition of property and the rights of property owners. Thus, when the Nation came to understand that slavery was morally wrong and mandated the emancipation of all slaves, it, in effect, redefined “property”. On a lesser scale, our ongoing self-education produces similar changes in the rights of property owners: New appreciation of the significance of endangered species …; the importance of wetlands …; and the vulnerability of coastal lands …, shapes our evolving understandings of property rights.
Lucas v. South Carolina Coastal Council, supra note 14 at 2921–22 (Stevens, J., dissenting). In the words of Morris Cohen: Looking at the matter realistically, few will question the wisdom of Holdsworth’s remarks, that “[a]t no time can the state be wholly indifferent to the use which the owners make of their property”. There must be restrictions on the use of property not only in the interests of other property owners but also in the interests of the health, safety, religion, morals, and general welfare of the whole community. … [I]f the large property owner is viewed, as he ought to be, as a wielder of power over the lives of his fellow citizens, the law should not hesitate to develop a doctrine as to his positive duties in the public interest.
Cohen, Morris, Law and the Social Order: Essays in Legal Philosophy (New York: Harcourt, Brace and Company, 1933) at 59,Google Scholar63 (footnote omitted), quoting SirHoldsworth, William VIII A History of English Law (London: Metheun & Co., 1922) at 100.Google Scholar
85. See, e.g., Epstein, supra note 15 at 35–104, 161–98 (if property is understood to be the individual’s right to unfettered possession, disposition, and use of corporeal or incorporeal objects, and if these rights are defined as they were in the American Founding Era, any later governmental action that changes these rights is a prima facie “taking” under the Fifth Amendment). Indeed, the idea of “payments for change” in existing rights has been argued, by some, to require the reverse, as well: if government provides betterments for individuals, it may have a claim (under some circumstances) to compensation from them. See Hagman, Donald G. “Windfalls and Their Recapture” in Hagman, Donald G. & Misczynski, Dean J. eds, Windfalls for Wipeouts: Land Value Capture and Compensation (Chicago: American Society of Planning Officials, 1978) 15 at 15–19.Google Scholar
86. Pennsylvania Coal Co. v. Mahon, supra note 14 at 413. See also Keystone Bituminous CoalAss’n v. DeBenediclis, supra note 14 at 47.
87. United States v. Causby, supra note 14 at 260–61. See also Loretto v. Teleprompter Manhattan CATV Corp., supra note 14 at 454 (Blackmun, J., dissenting).
88. Andrus v. Allard, supra note 14 at 65 (emphasis in original).
89. PruneYard Shopping Ctr. v. Robins, supra note 14 at 93 (Marshall, J., concurri).
90. Mugler v. Kansas, supra note 14 at 668-69. See also Prune Yard Shopping Clr. v. Robins, supra note Hat 82, quoting Armstrong v. United Stales, supra note 14 at 48 (“[I]t is well established that ‘not every destruction or injury to property by governmental action has been held to be a “taking” in the constitutional sense’.”).
91. See Underkuffler, supra note 36 at 130 & n.14.
Joseph Singer has described this problem in the following terms. Under the classical view, a “property right” is an extremely strong claim to indemnity for loss—placing the burden of proof upon the one who would deny that right, to justify that denial. See Joseph William Singer, “Property and Social Relations”, supra note 40 (manuscript at 10); Singer, supra note 51 passim.
92. Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166, 177-78 (1871). See also UnitedStates v. General Motors Corp., supra note 14 at 378 (footnote omitted) (“Governmental action short of acquisition of title or occupancy has been held, if its effects are so complete as to deprive the owner of all or most of his interest in the subject matter, to amount to a taking.”); Mugler v. Kansas, supra note 14 at 678 (Field, J., dissenting) (law prohibiting manufacture or sale of liquor, and ordering the destruction of liquor on hand, “crossed the line which separates regulation from confiscation”).
93. See, e.g., Keystone Bituminous CoalAss’n v. DeBenedictis, supra note 14 at 491.
94. Examples of such situations include the requirement that pillars of coal be left in underground mines to protect miners laboring in adjacent mines, seePlymouth Coal Co. v. Pennsylvania, 232 U.S. 531 (1914), and uniform zoning regulations which protect pre-existing uses. See Village of Euclid v. Ambler Realty Co., supra note 14.
95. Indeed, Justice Brewer, speaking for the Court, wrote one hundred years ago that the essential purpose of the Takings Clause is to “prevent[] the public from loading upon one individual more than his just share of the burdens of government, and …when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him.“ Monongahela Navigation Co. v. United States, 148 U.S. 312, 325 (1893). See also Kaiser Aetna v. United Stales, supra note 14 at 175; Armstrong v. United States, supra note 14 at 49.
96. See Penn Cent. Transp. Co. v. New York City, supra note 14.
97. See Hadacheck v. Sebastian, supra note 14.
98. One could argue that the first example of this approach isfound in the opinion of Justice Chase in Calder v. Bull. Making particular reference to the constitutional provision “‘that private property should not be taken for public use, without just compensation’”, he wrote that “the right, as well as the mode, or manner, of acquiring property, and of alienating or transferring, inheriting, or transmitting it, is conferred by society; [it] is regulated by civil institutions, and is always subject to the rules prescribed by positive law.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 394 (1798) (emphasis in original).
99. 239 U.S. 394(1915).
100. Ibid, at 410–12.
101. Ibid, at 410.
102. Reinman v. Little.Rock, Til U.S. 171 (1915).
103. Mugler v. Kansas, supra note 14 at 664-70.
104. Powell v. Pennsylvania, supra note 14.
105. Wells v. Midland Carbon Co., 254 U.S. 300 (1920).
106. Miller v. Schoene, 276 U.S. 272 (1928).
107. Bowditch v. Boston, 101 U.S. 16, 18–19(1879).
108. Goldblatt v. Hempstead, 369 U.S. 590 (1962).
109. United Slates v. Central Eureka Mining Co., supra note 14.
110. See, e.g., Penn Cent. Transp. Co. v. New York City, supra note 14 at 145 (Rehnquist, J., dissenting) (“nuisance exception” involves whether the proposed use is dangerous to the safety, health, or welfare of others); Calhoun v. Massie, 253 U.S. 170, 175–76 (1920) (“An appropriate exercise by a State of its police power is consistent with the Fourteenth Amendment, although it results in serious depreciation of property values; and the United States may, consistently with the Fifth Amendment, impose for a permitted purpose, restrictions upon property which produce like results.”).
One could argue that the police power exception is not inconsistent with the Apparent Model of property: property could simply be defined, under the Apparent Model, to exclude uses inimical to public health, safety, and welfare. For example, as Carol Rose has recently shown, the idea that an existing use could become a nuisance, by changes in surrounding land use, was a part of American legal culture as early as the nineteenth century. Rose, Carol “A Dozen Propositions on Property Rights: Observations on Property, Public Rights, and the New Takings Legislation” (1996)53 Wash. – Lee L. Rev. (manuscript at 12–14).Google Scholar If the theoretical dimension of the property rights of the brickyard operator in Hadacheck v. Sebastian were interpreted in this way, no impairment of “rights” by the City’s action would have been shown. See, supra text at notes 99–101.
In this context, a distinction must be made between uses which are known (or could reasonably be anticipated) to be prohibited at the time of the creation or vesting of the property interest, and uses which are determined, later, to be prohibited. In the case of the former, those restrictions on use would, indeed, be no different from any other restrictions which are parts of the theoretical dimension of the property in question. See, supra text at notes 42–51 and 76–79. In the case of the latter, however, a different problem is presented. Although a reserved ability to change some pre-existing rights might be compatible with the Apparent Model of property, allowing the collective to change such rights as it (in its discretion) sees fit would destroy any semblance of individual protection—the raison d’être of the Apparent Model. See, supra text at notes 76–79, and infra text at notes 142–47. See also Keystone Bituminous Coal Ass’n v. DeBenedictis, supra note 14 at 513 (Rehnquist, C.J., dissenting) (“A broad exception to the operation of the Just Compensation Clause based on the exercise of multifaceted health, welfare, and safety regulations would surely allow government much greater authority than we have recognized …, for nearly every action the government takes is intended to secure for the public an extra measure of ‘health, safety, and welfare.’”).
111. 447 U.S. 255(1980).
112. Ibid, at 260. See also Penn Cent. Transp. Co. v. New York City, supra note 14 at 127 (“[A] [land] use restriction … may constitute a ‘taking’ if not reasonably necessary to the effectuation of a substantial public purpose… .”). The range of governmental purposes and regulations that satisfies these requirements is “broad”. Nollan v. California Coastal Comm’n, supra note 14 at 834–35.
113. See Agins v. Tiburon, supra note 14 at 260–61; Lucas v. South Carolina Coastal Council, supra note 14 at 2893–94; Corieb v. Fox, 274 U.S. 603,607 (1927); Village of Euclid v. Ambler Realty Co., supra note 14 at 396–97; Hudson County Water Co. v. McCarter, supra note 14 at 355.
Compensation in zoning cases has been denied, even when claimed individual losses were severe. See, e.g., Village of Euclid v. Ambler Realty Co., supra note 14 at 384 (75% loss); Sax, “Takings and the Police Power,” supra note 14 at 44 & n.52.
114. Penn Cent. Transp. Co. v. New York City, supra note 14 at 12.
115. Keystone Bituminous Coal Ass’n v. DeBenedictis, supra note 14 at 493–97.
116. Andrus v. Allard, supra note 14.
117. Penn Cent. Transp. Co. v. New York City, supra note 14 at 124. As boldly stated by the Court:“[I]n instances in which a state tribunal reasonably concluded that ‘the health, safety, morals, or general welfare’ would be promoted by prohibiting particular contemplated uses of land, this Court has upheld land-use regulations that destroyed or adversely affected recognized real property interests. …Zoning laws are, of course, the classic example … .” Ibid, at 125, quoting Nectow v. Cambridge, 277 U.S. 183, 188 (1928). See also Pennsylvania Coal Co. v. Mahon, supra note 14 at 417 (Brandeis, J., dissenting) (“[T]he right of the owner to use his land is not absolute. He may not so use it as to create a public nuisance; and uses, once harmless, may, owing to changed conditions, seriously threaten the public welfare. Whenever they do, the legislature has power to prohibit such uses without paying compensation; and the power to prohibit extends alike to the manner, the character and the purpose of the use.”).
118. Andrus v. Allard, supra note 14 at 65 (emphasis deleted). “The Takings Clause… preserves governmental power to regulate, subject only to the dictates of ‘justice and fairness.’ … There is no abstract or fixed point at which judicial intervention under the Takings Clause becomes appropriate.” Ibid., quoting Penn Cent. Transp. Co. v. New York City, supra note 14 at 124.
119. See, e.g., Penn Central Transp. Co. v. New York City, supra note 14 at 136.
120. See, e.g., ibid, at 131 (Court’s prior decisions “uniformly reject the proposition that diminution in property value, standing alone, can establish a 'taking’”); Omnia Commercial Co., Inc. v. United Slates, supra note 14 at 508 (“destruction of, or injury to, property is frequently accomplished without a ‘taking’ in the constitutional sense”).
121. See, e.g., Lucas v. South Carolina Coastal Council, supra note 14 at 2894; Keystone Bituminous Coal Ass’n v. DeBenedictis, supra note 14 at 491–92.
122. Compare, e.g., Lucas v. South Carolina Coastal Council, supra note 14 at 2894 n.7 (property interests of landowner are those protected by the “rich tradition of… common law”) with Munn v. Illinois, 94 U.S. 113, 134 (1877) (“A person has no property, no vested interest, in any rule of the common law … . Indeed, the great office of statutes is to remedy defects in the common law …, and to adapt it to the changes of time and circumstances.” and United States v. Causby, supra note 14 at 260–61 (“[cjommon sense revolts at the idea” that legislatures cannot alter common-law rights).
123. There is, of course, some point where the content of these dimensions might be defined in a way that is so inconsistent with the essential characteristics of the model as to render it meaningless. See, infra text at notes 142–47.
124. Loretto v. Teleprompter Manhattan CATV Corp., supra note 14 at 433, quoting Kaiser Aetna v. United States, supra note 14 at 176 (emphasis added). “The power to exclude has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights.” “[A]n owner suffers a special kind of injury when a stranger directly invades and occupies the owner’s property.” Ibid, at 435, 436 (footnote omitted) (emphases added and deleted).
125. Loretto v. Teleprompter Manhattan CATV Corp., supra note 14 at 436 (emphases added and deleted).
126. Ibid, at 426 (emphasis added). “[T]his Court’s most recent cases … have emphasized that physical invasion cases are special …”. Ibid, at 432 (emphasis deleted).
127. 127.See, e.g., Nollan v. California Coastal Comm’n, supra note 14; Loretto v. Teleprompter Manhattan CATV Corp., supra note 14; Kaiser Aetna v. United States, supra note 14; United States v. Causby, supra note 14; St. Louis v. Western Union Telegraph Co., 148 U.S. 92(1893).
128. Hodel v. Irving, supra note 14 at 716–18.
Jed Rubenfeld has argued that this hierarchical ordering of property interests parallels the fundamental-rights methodology long used in the evaluation of Fifth and Fourteenth Amendment liberty interests. See Rubenfeld, supra note 14 at 1097–1111.
Absolute rights to exclude and devise have been found, by the Court, in the context of land ownership. For an interesting exploration of stringency issues in a wider context, see Radin, Margaret “Property and Personhood” (1982) 34 Stan. L. Rev. 957 CrossRefGoogle Scholar(arguing that the relationships of interests to personhood should affect the degrees of their protection as property).
129. See, PruneYard Shopping Ctr. v. Robins, supra note 14 at 83, quoting Pennsylvania Coal Co. v. Mahon, supra note 14 at 415 (whether a ‘“regulation goes too far… [and is] a taking’” will depend upon “inquiry into such factors as the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations”)
130. See, e.g., Andrus v. Allard, supra note 14 at 66 (“the interest in anticipated gains has traditionally been viewed as less compelling than other property-related interests”); Loretto v. Teleprompter Manhattan CATV Corp., supra note 14 at 428 (denial of access to property not a taking because it “only impaired the use of plaintiffs' property”).
131. Agins v. Tiburon, supra note 14 at 262 (emphasis added).
132. Andrus v. Allard, supra note 14 at 67, quoting Jacob Ruppert, Inc. v. Caffey, 251 U.S. 264, 303 (1920). See also, First English Evangelical Lutheran Church v. County of Los Angeles, supra note 14 at 329 (Stevens, J., dissenting) (a use restriction is not compensable “unless it destroys a major portion of the property’s value”). Cf. Costonis, John J. , “Presumptive and Per Se Takings: A Decisional Model for the Taking Issue” (1983) 58 N.Y.U. L. Rev. 465 Google Scholar at 513–14 (arguing that the Court has elevated interests in “property’s dominion” (right to exclude) “to a status coequal with … conventional civil liberties interests”—a status not accorded to other property rights).
133. Andrus v. Allard, supra note 14 at 66. See also, James Everard’s Breweries v. Day, supra note 14 and Jacob Ruppert, Inc. v. Caffey, 251 U.S. 264,302—03 (1920) (upholding sales bans on previously acquired goods).
134. 458 U.S. 419(1982).
135. See, ibid, at 438 & n. 16.
136. 444 U.S. 51 (1979).
137. Indeed, in a recent case, the Court explicitly discussed this idea and endorsed this conclusion. The Court described two wartime takings cases as “instructive” on the question of different protection for different property interests. See Loretto v. Telepmmpter Manhattan CATV Corp., supra note 14 at 431. In the first case, the government seized and directed the operation of a coal mine; this was held to be a taking. See United States v. Pewee Coal Co., 341 U.S. 114 (1951). In the second case, the government ordered a gold mine closed; this was held not to be a taking. See United States v. Central Eureka Mining Co., supra note 14. Although conceding that the effects of the actions were ‘“as a practical matter’” the same in both cases, the results—the Court reasoned—are explained by the intrinsic nature of the interests involved. The first case involved “physical possession” by government; the second did not. As a result, compensation was required in the first case; in the second, it was not. Loretto v. Telepmmpter Manhattan CATV Corp, supra note 14 at 431–32.
138. See, supra text at notes 98–119.
139. Loretto v. Telepmmpter Manhattan CATV Corp., supra note 14 at 454 (Blackmun, J., dissenting).
140. Cf. Anderson, Jerry L. “Takings and Expectations: Toward a ‘Broader Vision’ of Property Rights” (1989) 37 Kan. L. Rev. 529 at 562Google Scholar (landowners’ legitimate expectations, recognized as property, “must be tempered by a public interest condition”, i.e., an understanding that there may be later restrictions as the public interest requires).
141. Lucas v. South Carolina Coastal Council, supra note 14 at 2899. See also Keystone Bituminous Coal Ass’n v. DeBenedictis, supra note 14, at 491–92, quoting Mugler v. Kansas, supra note 14 at 665 (“Long ago it was recognized that ‘all property … is held under the implied obligation that the owner’s use of it shall not be injurious to the community’ …”).
142. See, supra text at notes 76–77.
143. Mugler v. Kansas, supra note 14 at 669, quoting Stone v. Mississippi, 101 U.S. 814, 819(1879). See also Block v. Hirsh, supra note 14 at 156 (emergency housing conditions sufficient to justify municipal determination of reasonable rents: “public exigency will justify the legislature in restricting property rights in land to a certain extent without compensation”).
144. In a recent dissent, Justice Blackmun noted that “[t]he brewery, the brickyard, the cedar trees, and the gravel pit [in Mugler, Hadacheck, Miller, and Goldblatt] were all perfectly legitimate uses prior to the passage of the regulation.” Lucas v. South Carolina Coastal Council, supra note 14 at 2913 n.16 (Blackmun, J., dissenting).
145. The “circularity” in defining “the owner’s reasonable expectations” in terms of “what courts allow as a proper exercise of governmental authority” was discussed by Justice Kennedy in a recent concurring opinion. If this approach is taken, “property tends to become what courts say it is.” The solution, he wrote, is to be found in the proposition that “[t]he expectations protected by the Constitution are based on objective rules and customs that can be understood as reasonable by all parties involved.” “The Takings Clause … protects private expectations to ensure private investment.” Lucas v. South Carolina Coaxial Council, supra note 14 at 2903 (Kennedy, J., concurring in the judgment).
146. Cf. ibid, at 2892–93, quoting Pennsylvania Coal Co. v. Mahon, supra note 14 at 415 (“[I]f the protection against physical appropriations of private property [is] to be meaningfully enforced, the government’s power to redefine the range of interests included in the ownership of property [is] necessarily constrained by constitutional limits. … If… the uses of private property were subject to unbridled, uncompensated qualification under the police power, ‘the natural tendency of human nature [would be] to extend the qualification more and more until at last private property disappear[ed].’”).
147. In Keystone CoalAss’n v. DeBenedictis, the Court discussed its typical approach in these cases: if the state’s interest is deemed to be strong enough, it simply trumps private property interests, without the need for further explanation.
In Musler v. Kansas, … for example, a Kansas distiller who had built a brewery while it was legal to do so challenged a Kansas constitutional amendment which prohibited the manufacture and sale of intoxicating liquors. Although the Court recognized that the “buildings and machinery constituting these breweries are of little value” because of the Amendment,… Justice Harlan explained that a
“prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot… be deemed a taking or appropriation of property …”. …
…[Similarly, in Miller v. Schoene], the Court did not consider it necessary to “weigh with nicety the question whether the infected cedars [which were ordered destroyed] constitute a nuisance according to common law; or whether they may be so declared by statute.” … Rather, it was clear that the State’s exercise of its police power to prevent the impending danger was justified, and did not require compensation.
Keystone Bituminous CoalAss’n v. DeBenedictis, supra note 14 at 488–90. Such regulations are simply “a burden borne to secure ‘the advantage of living and doing business in a civilized community.’” Andrus v. Allard, supra note 14 at 67, quoting Pennsylvania Coal Co. v. Mahon, supra note 14 at 422 (Brandeis, J., dissenting).
148. See, e.g., Wilkinson v. Letand, 27 U.S. 627,657 (1829) (“[G]overnment can scarcely be deemed to be free, where the rights of property are left solely dependent upon the will of a legislative body, without… restraint.”).
149. See, supra text at notes 98–110.
150. Such specially treated rights are called “core” rights, “traditional” rights, “fundamental” rights, and “essential” rights. See, e.g., Nollan v. California Coastal Comm’n, supra note 14 at 831; Kaiser Aetna v. United States, supra note 14 at 176; Lorelto v. Teleprompter Manhattan CATV Corp., supra note 14 at 435–41; Andrus v. Allard, supra note 14 at 65.
151. See, e.g., Agins v. Tiburon, supra note 14 at 261; Penn Cent. Transp. Co. v. New York City, supra note 14 at 131.
152. See Lucas v. South Carolina Coastal Council, supra note 14 at 2894 n.7.
153. Rose, supra note 14.
154. Ibid, at 587–92.
155. Alexander, supra note 34 at 260–61.
156. Michelman, “Possession vs. Distribution”, supra note 34 at 1320–35.Google Scholar
157. Nedelsky argued that the model of private property as individual protection has served, in the American constitutional system, as “the quintessential instance of individual rights as limits to governmental power.” Property must have this special nature—this mythically concrete quality—if it is to perform its limiting role on claims of majoritarian legislative power. If this conception of property is replaced by a conception which explicitly acknowledges distributional calculations, if it “is finally perceived to be merely a legal entitlement, indistinguishable in nature from any other”, “then it can serve neither a real nor a symbolic function as boundary between individual rights and governmental authority.” Nedelsky, Jennifer “Paradox”, supra note 67 at 241, 253, 251.Google Scholar
158. Whether the theoretical dimension adopted is individual-protectionist, communitarian, or otherwise defined will obviously affect the nature, structure, and function of the resulting conception of property. Indeed, the development of explicitly different theories of property and their places in individual-community relations has distinguished many recent commentaries. See, supra notes 34 and 40.
159. Macpherson, C.B. “The Meaning of Property”, supra note 38 at 1.Google Scholar
160. Ibid.
161. Ibid.
162. Underkuffler, , “Perfidy”, supra note 64 at 307.Google Scholar
163. See Raz, Joseph The Morality of Freedom (Oxford: Clarendon Press, 1986) at 170 Google Scholar (distinguishing a statement of a general right from particular rights, which are instances of it).
164. See C.B. Macpherson, supra note 40 at 72–77; Reich, Charles A. “The Individual Sector” (1991) 100 Yale L.J. 1409.CrossRefGoogle Scholar
165. Gray, supra note 40 at 212. We may “com[e] to recognise, on behalf of the individual citizen, a significant ‘equitable property’ in the quality and conservation of the natural environment.” We may “lock into the insidiously powerful leverage of the primal claim, ‘its mine’, and … harness this claim for more constructive social purposes. When important assets of the human community are threatened, we are able to say, with collective force, ‘you can’t do that: these assets are ours.’” Ibid, at 188, 210 (footnote omitted). See also Rieser, Alison “Ecological Preservation as a Public Property Right: An Emerging Doctrine in Search of a Theory” (1991) 15 Harv. Env. L. Rev. 393 Google Scholar (describing the public’s “property rights” in non-commodified values associated with natural resources).
166. Cf. Macpherson, , “The Meaning of Property”, supra note 38 at 1 Google Scholar (describing how, “over time[,] the institution and the concept influence each other”).
167. See Underkuffler, “Perfidy”, supra note 64 at 310.Google Scholar Cf. Lomasky, Loren E. Persons, Rights, and the Moral Community (New York: Oxford University Press, 1987) at 14–15 Google Scholar (arguing that “a rational and worthwhile individualism” includes a scheme of basic rights, tempered by sociality and the need for flexibility within private and public spheres).
168. See Rubenfeld, Jed “Reading the Constitution as Spoken” (1995) 104 Yale L.J. 1119 at 1157–60CrossRefGoogle Scholar (describing commitment to prior principles in law as a “form of bindingness”, forcing an acknowledgement of change and a reckoning with its consequences). Cf. Rose, supra note 110(manuscript at 43) (discussing the “endowment effect”, or the tendency of beneficiaries to believe that special favors, once granted, cannot be taken away).
169. 112 S.Ct. 2886(1992).
170. S.C. Code Sec. 48–39–10 el. seq. (1987).
171. S.C. Code Sec. 48–39–130(A) (1987).
172. Lucas v. South Carolina Coastal Council, supra note 14 at 2889.
173. S.C.Code Sec. 48–39–280 et. seq. (Supp. 1988).
174. S.C. Code Sec. 48–39–250 (Supp. 1991).
175. Lucas v. South Carolina Coastal Council, supra note 14 at 2889–90.
176. Ibid, at 2890. The majority in Lucas accepted Lucas’s assertion that because of the construction ban, his two beachfront lots were “"rendered valueless”. Ibid, at 2896.
177. Ibid, at 2890.
178. Lucas v. South Carolina Coastal Council, 404 S.E.2d 895, 899 (S.C. 1991).
179. Lucas v. South Carolina Coastal Council, supra note 14 at 2892, quoting Legal Tender Cases, 12 Wall. 457, 551 (1871) and Transportation Co. v. Chicago, supra note 53 at 642.
180. Ibid, at 2892–93, quoting Pennsylvania Coal Co. v. Mahon, supra note 14 at 415.
181. Ibid. at 2893, quoting Pennsylvania Coat Co. v. Mahon, supra note 14 at 415.
182. Ibid.
183. Ibid., quoting Penn Central Transp. Co. v. New York City, supra note 14 at 124, quoting Goldblatt v. Hempstead, 369 U.S. 590 at 594 (1962).
184. Ibid. at 2895 n.8, quoting Penn Central Transp. Co. v. New York City, supra note 14 at 124.
185. Ibid. at 2893.
186. Ibid.
187. Ibid. at 2893–94, quoting Agins v. Tiburon, supra note 14 at 260 (emphasis deleted).
188. The reasons for this exception to the usual, ad hoc approach to takings are somewhat obscure. However, the Court listed several possible justifications. First, “total deprivation of beneficial use is, from the landowner’s point of view, the equivalent of a physical appropriation.” Ibid. at 2894. “[I]n the extraordinary circumstance when no productive or economically beneficial use of land is permitted, it is less realistic to indulge our usual assumption that the legislature is simply ‘adjusting the benefits and burdens of economic life.’” Ibid., quoting Perm Central Transp. Co. v. New York City, supra note 14 at 124. In addition, there are practical reasons which support this rule. The concern that government could not go on, if every diminution in value incident to property required compensation, “does not apply to the relatively rare situations where the government has deprived a landowner of all economically beneficial uses”. Ibid. There is also “a heightened risk that private property [will be] pressed into some form of public service”, when all economically beneficial use is taken. Ibid. at 2894, 2895.
189. Ibid. at 2895 (footnote omitted).
190. Ibid. at 2894 n.7. As Justice Scalia explained, if “a regulation requires a developer to leave 90% of a rural tract in its natural state, it is unclear whether we would analyze the situation as one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or as one in which the owner has suffered a mere diminution in value of the tract as a whole.” Ibid.
191. Ibid.
192. Ibid. at 2897.
193. Ibid. at 2899.
194. Ibid. at 2897.
195. Ibid. at 2899.
196. Ibid. at 2900.
197. Ibid.
198. Ibid.
199. Ibid. at 2901.
200. Ibid. at 2901, 2902.
201. For an excellent sampling of Lucas commentary, see Epstein, Richard A. “ Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations” (1993) 45 Stan. L. Rev. 1369;CrossRefGoogle Scholar Fisher, William W. III “The Trouble with Lucas ” (1993) 45 Stan. L. Rev. 1393;Google Scholar Lazarus, Richard J. “Putting the Correct ‘Spin’ on Lucas” (1993) 45 Stan. L. Rev. 1411;CrossRefGoogle Scholar Sax, Joseph L. “Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council” (1993) 45 Stan. L. Rev. 1433.CrossRefGoogle Scholar
202. Lucas v. South Carolina Coastal Council, supra note 14 at 2893.
203. See, ibid. at 2894–95.
204. Penn Central Transp. Co. v. New York City, supra note 14 at 124.
205. See, Lucas v. South Carolina Coastal Council, supra note 14 at 2893.
206. See, ibid. at 2894 n.7; supra text at notes 63–66.
207. Lucas v. South Carolina Coastal Council, supra note 14 at 2892.
208. Ibid. The analogy to “physical appropriation” can be found in many of the Court’s takings cases. See, Keystone Bituminous Coal Ass’n v. DeBenedictis, supra note 14 at 516–17 (Rehnquist, J., dissenting).
209. See, Lucas v. South Carolina Coastal Council, supra note 14 at 2892–93.
210. Ibid. at 2893.
211. Ibid. at 2895 n.8.
212. Ibid at 2894, quoting Pennsylvania Coal Co. v. Mahon, supra note 14 at 413.
213. Ibid. at 2892.
214. The unexplained use of Apparent and Operative models can be found in the Court’s other opinions as well. In Nollan v. California Coastal Commission, for instance, the Court first asserted that a permanent physical occupation of property is a taking “‘without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner’”—implying the use of an Apparent Model of property. Nollan v. California Coastal Comm’n, supra note 14 at 831 –32, quoting Loretto v. Teleprompter Manhattan CATV Corp., supra note 14 at 434–35. Later, the Court asserted that a land-use regulation “does not effect a taking if it ‘substantially advance[s] legitimate state interests’ and does not ‘den[y] an owner economically viable use of his land’”—implying the use of an Operative Model of property. Ibid., at 834, quoting Agins v. Tiburon, supra note 14 at 260. Neither the use of these different models, nor their implications, is acknowledged. See also Keystone Bituminous Coal Ass’n v. DeBenedictis, supra note 14 at 488–89 n.18; Penn Cent. Transp. Co. v. New York City, supra note 14 at 124–25; Pennsylvania Coal Co. v. Malum, supra note 14 at 413–14 (using a mixture of Apparent and Operative models in discussing classic takings tests).
215. Lucas v. South Carolina Coastal Council, supra note 14 at 2897.
216. Ibid. at 2897–98.
217. Ibid. at 2899.
218. Ibid. at 2893, quoting Pennsylvania Coal Co. v. Mahon, supra note 14 at 415.
219. Ibid. at 2901–02.
220. Ibid. at 2894 n.7.
221. Ibid. at 2899.
222. Ibid. at 2900.
223. Ibid.
224. Ibid. at 2901–02
225. In asking these questions, we must question not only the dimensions of space, stringency, and time that we have chosen for our understanding of property—we must question the first, theoretical dimension as well. Simple theories of individual protection, as found in common conceptions, may fail to reflect the affirmative duties and social context which many human rights involve. Property may involve not only those rights that protect the autonomy and security of the individual against interference by others; it may also involve rights that are dependent upon social context for their expression, development or support. See Macpherson, supra note 40 at 76–77; Underkuffler, supra note 36 at 133–42. Ideas of trusteeship, duties, or other notions of responsibility may, in fact, belter capture the true nature of individual-community relations than simple ideas of protection or autonomy alone. See Gray, supra note 40 at 208–09 (arguing that property involves the “reciprocal responsibility which each citizen owes to his or her community”); Rose, “Environmental Lessons”, supra note 40 at 1042–43Google Scholar (arguing that ideas of stewardship and trusteeship, commonly used in environmental contexts, are rooted in property-rights ideas); Singer, “Property and Social Relations”, supra note 40 (manuscript at 11, 22–25)Google Scholar and Singer, Joseph William “No Right to Exclude: Public Accommodations and Private Property” (manuscript at 222–26).Google Scholar
226. Private Property Owners Bill of Rights, S. 239, H.R. 790, 104th Cong., 1st Sess. (1995).
227. Property Rights Litigation Relief Act, S. 135, H.R. 489, 104th Cong., 1st Sess. (1995).
228. As stated by Kevin Gray:
[I]n one of the earliest phrases articulated by almost every human child, there lies the strongest affirmation of [the] internalised concern to appropriate. … [E]ven our own judges and legislators seem obsessed with the need to formulate human perceptions of the external world in the intangible terms of individualised ownership and “private property.” Our lives are in every respect dominated by an intuitive sense of property and belonging.
… In this context we are still not far removed from the primitive, instinctive cries of identification which resound in the playgroup or playground: “That’s not yours; it’s mine.”
Gray, supra note 40 at 157–59 (footnote omitted). The recognition of possessive relationships has been argued by some psychiatrists and social scientists to be an important part of the development of individuation and self-identity. See, ibid. at 158 notes 2 and 3 (citing studies).
229. See, supra text at notes 10–13.
230. See, Scott, supra note 2 at 114–16. The solution to this dilemma by one court is prescient of modern Apparent Model notions. Property, once granted, is a “natural” right, which cannot be taken without compensation; any other rule grants the legislature “despotic power”. Vanhorne’s Lessee v. Darrance, 2 U.S. (2 Dall.) 304, 310–12 (1795). See also, Scott, supra at 116–17.
231. Gray, supra note 40 at 159 (footnote omitted). See also Gray, Kevin “The Ambivalence of Property” in Prins, Gwyn ed., Threats Without Enemies (London: Earthscan Publications, Ltd., 1993) 150 at 151 (“few other legal notions operate such gross or systematic deception”).Google Scholar
232. See, e.g., Calabresi, Guido & Bobbitt, Philip Tragic Choices (New York: W.W. Norton & Co., 1978) at 17–28;Google Scholar Holmes, Stephen “Gag Rules or the Politics of Omission” in Elster, Jon & Slagstad, Rune eds, Constitutionalism and Democracy (Cambridge: Cambridge University Press, 1988) 19 (discussing the value in excluding issues that elicit radical disagreement from the public sphere).CrossRefGoogle Scholar See also Rawls, John “Justice as Fairness: Political Not Metaphysical” (1985) 14 Phil. … Publ. Affairs 223.Google Scholar
233. Cf. Nedelsky, “Paradox”, supra note 67 at 263 Google Scholar (arguing that contingent understandings of property may threaten “the popular force of the idea of property as a limit to the legitimate power of government”).
234. Ibid.
235. This should be compared to other legal systems, where acknowledgement of the complexity of property is, in fact, quite explicit. For instance, Article 14(1) of the German Basic Law provides that the rights of ownership and the law of succession are guaranteed, with their content and limits determined by statute. (“Das Eigentum und das Erbrecht werden gewährleistet. Inhalt und Schranken werden durch die Gesetze bestimmt.”) In Article 14(2), however, it is stated that ownership entails duties for the owner, and that its exercise must serve the public interest. (“Eigentum verpflichtet. Sein Gebrauch soil zugleich dem Wohle der Allgemeinheit dienen.”). Art. 14(1),(2), Grundgesetz für die Bundesrepublik Deutschland (1949).
236. See Lucas v. South Carolina Coastal Council, supra note 14 at 2896 note 10.