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Ilya Somin on Originalism, Regulatory Takings and Murr v. Wisconsin
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Thoughts on the California amicus brief in Murr v. Wisconsin – an important takings case currently before the Supreme Court.  It begins:

In April, the state of Nevada filed an amicus brief that I coauthored on behalf of Nevada itself and eight other state governments in Murr v. Wisconsin, a major property rights case currently before the Supreme Court. The case addresses an important question about when property owners are entitled to compensation under the Takings Clause of the Fifth Amendment: whether a regulation that might otherwise be a taking might cease to be one merely because the owner of the affected lot also happens to own other property contiguous to it. Our brief is an unusual example of state governments standing up for property rights in the Supreme Court.

Recently, a group of nine other states, led by California, filed an amicus brief supporting the other side in the case, and in part responding to ours (pp. 23-26). While I am grateful to California for focusing on our arguments, I think their attempted rebuttal does more to highlight the weaknesses in Wisconsin’s position than to bolster it.

On the originalism aspects:

California contends that, because the original understanding of the Fifth Amendment did not contemplate compensation for regulatory takings, the Framers did not have “any view regarding the definition of the relevant property parcels” in such cases. Therefore, [its brief] suggest[s] that the text and original meaning imposes no constraints on state manipulation of parcel boundaries in order to avoid paying compensation. This argument ignores the actual text of the Fifth Amendment, which simply states that “just compensation” must be paid whenever private property is “taken” by the government, without making any distinction between different types of takings. It also ignores the scholarship we cite in our brief indicating that regulatory takings were in fact contemplated by the Founding Fathers, and by early court decisions, as part of the then-dominant “natural law” understanding of property rights (4-5). Whatever was true when the Fifth Amendment was first enacted in 1791, regulatory takings were a well-understood and widely accepted concept by the time it became applicable to the states as a result of the adoption of the Fourteenth Amendment in 1868. And most regulatory takings (including the one in this case) are initiated by state and local governments.

California also completely ignores the extensive early case law we cited indicating that takings compensation should follow parcel boundaries (6-9). Even if regulatory takings were not specifically contemplated at the time of the Founding, that does not mean the Supreme Court should just disregard the original understanding of the importance of individual parcels in American takings law.

The originalist foundation of regulatory takings doctrine is an important topic; among other things, the supposed lack of such foundation has been used by critics like Cass Sunstein to accuse Justices Scalia, Thomas and others of inconsistency in their pursuit of originalism.  It would be great if this case were to offer an opportunity for the Court (or at least some Justices) to set out an originalist defense (which was, one must admit, sadly lacking in the key modern case Lucas v. South Carolina Coastal Council).