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06/09/2014

Christopher Serkin: The State's Affirmative Duty to Protect Property
Michael Ramsey

Christopher Serkin (Vanderbilt Law School) has posted Passive Takings: The State's Affirmative Duty to Protect Property (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract: 

As conventionally understood, regulatory takings doctrine protects property owners from the most significant costs of legal transitions. Legal change has therefore always been central to regulatory takings claims. This Article argues that it does not need to be, and that governments can violate the Takings Clause by failing to act in the face of a changing world. This is much more than a minor refinement of takings law because government liability for failing to act means that, in at least some circumstances, the Takings Clause imposes an affirmative obligation on the government to protect property. This liability runs counter to conventional understandings of constitutional law in which the Constitution enshrines primarily negative liberties. The Takings Clause, then, can serve as a previously unrecognized basis for affirmative government obligations. The Article ultimately illustrates this new category of passive takings with the example of sea level rise, arguing that ecological threats may compel the government to respond or else face takings liability.

This article struck me as an outstanding illustration of the differences between originalism and non-originalism. 

Confronting the question "Does the takings clause impose an affirmative duty to protect property?", an originalist would ask: did people in the founding period use the phrase "taking" of property to include what Professor Serkin calls "passive takings"?  The originalist would look at how "taking" was understood in pre-ratification English and U.S. law, how it was used in discussions of the Constitution and of parallel language in the state constitutions, as well as how it was discussed in post-ratification law and commentary.  It's possible that the record is unclear, but my guess is that it's not: without having looked into it specifically, my guess is that essentially no one in the founding era thought a "taking" occurred when the government failed to protect property against (for example) natural disaster.  If that's right, the originalist would flatly reject Professor Serkin's suggestion.  But of course my guess could be proved wrong by historical research, in which case the originalist would come out the other way.  The originalist would see the question as having an objective answer that (hopefully) could be found and implemented.

In contrast, the nonoriginalist approach, I guess, would be to consider what the best result would be, taking into account questions like fairness to property owners, broader implications for government incentives and allocation of resources, the role of courts versus legislatures in deciding such questions, and the feasibility and impact on the legal system of allowing such claims.  And the outcome would be ... whatever the judge though best.

I don't intend this as an argument for either side, just as an illustration of the choice to be made.