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09/19/2011

Originalism and Classic Cases: Nollan v. California Coastal Commission
Michael Ramsey

With this post I’m going to start an occasional originalist commentary on cases I’m teaching in this semester’s Constitutional Law II course.  The case I’ll focus on here is Nollan v. California Coastal Commission, which we covered last week.  Nollan, I think, poses a serious challenge to originalism, for reasons I’ll explain.  (Disclaimer: Nollan is a takings case, and takings is not my core area of scholarship, so there may be more complete analyses of this point that I’m not familiar with).

Somewhat oversimplified, the question in Nollan was whether the Commission could require a landowner, as a condition of receiving a permit for additional construction on the landowner’s property, to dedicate a public easement across the land to reach a public beach.  The landowner claimed a taking under the Fifth Amendment.  Assume that (a) the Fifth Amendment’s original meaning would not allow the Commission simply to compel dedication of the easement, but (b) the Fifth Amendment’s original meaning would allow the Commission to deny a permit for additional construction on the property.  (Also assume that something in the Fourteenth Amendment incorporates the Fifth Amendment's takings clause against the states).  What result under an original meaning approach?

The Supreme Court, per Justice Scalia, held for the landowner, but the opinion is almost wholly devoid of originalist analysis.  I think that’s because there’s no easy way for originalism to handle the case.  First, I take it that there’s no commentary or practice from the relevant period (whether that’s the 1790s or the 1860s) because governments typically didn’t engage in this sort of land use regulation at the time.  (Perhaps there actually is some direct evidence which might solve the problem, but I bet there isn’t, or Scalia would have cited it.)  So what does originalist analysis do?

I can see several options, but none seems promising.  One is to look for an analogy in some other field where there is original practice.  Nollan is basically an unconstitutional conditions case (that is, the government allows the citizen to get something valuable in return for giving up a constitutional right).  So maybe founding-era practice on unconstitutional conditions in other areas might help.  But I doubt it: unconstitutional conditions analysis notoriously leads to mixed results – it seems that sometimes the conditions can’t be allowed and sometimes they can, with the line being very difficult to draw.  Any application of this practice by analogy (even assuming there is conclusive practice in another field) is likely to be heavily contested.

Another approach would be to look for a “principle” behind the Fifth Amendment that informs the resolution of the case.  Perhaps that’s what Scalia tried to do.  Allowing the government to impose the choice forced on the landowner in Nollan would, he thought, undermine security of private property (because governments would be tempted to impose bogus use limitations to get leverage for all sorts of petty extortions); since the principle behind the Fifth Amendment was security of private property, the government action shouldn’t be allowed.  But this seems a doubtful venture – I’m not sure how to go about it in a principled way, and I’m fairly sure that, however the inquiry is framed, its outcome will turn more on the policy intuitions of the decisionmaker than anything objectively discoverable.

Perhaps we could resolve the case with some sort of default rule.  A promising one in some areas is to apply what the text appears to say on its face unless there is powerful contrary practice from the relevant time.  Free speech under the First Amendment might be amenable to that approach, for example.  But here it’s far from clear which way that cuts: does the condition imposed in Nollan appear on its face to be a taking of property or not?  I doubt any consensus could be reached.  Alternatively, one could apply a blanket default rule that the government wins (or the claimant wins) absent originalist evidence to the contrary.  But unless this approach is rooted in the founding generation’s own consensus rules of interpretation, this isn’t originalism – it’s judicial restraint, or judicial libertarianism.

Finally, one could say that originalism fails to supply an answer and so leaves resolution to a non-originalist decisionmaking process.  I think this would be the solution pressed by Larry Solum and other originalists who adopt the “interpretation/construction” distinction.  (See also this post by Randy Barnett).  Nollan would, I think, be an example of “construction,” which (they say) isn’t governed by originalism.  (It’s worth noting that Justice Scalia in another context has said that one role of the originalist judge is to reduce originalist directives to practical rules to decide cases, which appears to be a somewhat similar idea).  But at that point it seems we are deciding based on pure policy assessment, something originalism is supposed to avoid.

To be sure, Nollan isn’t any easier a case under non-originalist analysis.  Non-originalists like to claim that their approach doesn’t immediately reduce to pure policy analysis.  Perhaps this is true for some non-originalist approaches some of the time, but I don’t see any non-originalist way to resolve Nollan other than by asking whether the particular decisionmaker thinks it’s a good idea for governments to have the power the Commission asserted.  Originalism, though, is supposed to be attractive because it avoids that problem – and in Nollan, I don’t see how it can.