A Taking by Any Other Name

The Supreme Court extends its bad record on property rights.



The Supreme Court has made some large missteps on property rights in recent years (see Kelo v. City of New London) and on Friday it did it again. The Justices ruled 5-3 that adjacent parcels of land can be counted as a single piece of property, without any compensation to the owner for the change. Count that as a missed opportunity for the Court to brush back burdensome regulations that often amount to unconstitutional takings.

Under the Takings Clause of the Fifth Amendment, property may not be taken by the government for public use without just compensation. In the 1990s four Murr siblings inherited two pieces of adjacent property that their parents had purchased in the 1960s. Ten years later, when the children sought to sell one of the lots, the sale was blocked by a 1975 zoning ordinance that counted the two properties as a single parcel.

The pieces of land had been deeded and taxed separately, but that didn’t sway the majority, written by Anthony Kennedy and joined by the four liberal justices. “The governmental action was a reasonable land-use regulation,” Justice Kennedy wrote, “enacted as part of a coordinated federal, state, and local effort to preserve the river and surrounding land.” (Murr v. Wisconsin

The right to sell a piece of property seems fundamental, but the Court offered an exhausting list of considerations that state courts may consider while deciding whether a landowner should expect two adjacent properties to be treated separately or together. Among those, Justice Kennedy offered, are “the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land.” Oh, and also the “background customs and the whole of our legal tradition.” That really clears things up.

In his dissent, joined by Justice Samuel Alito and Justice Clarence Thomas, Chief Justice John Roberts pays lip service to the reality of regulatory takings, noting that governments routinely “infringe private property interests for public use not only through appropriations, but through regulations as well. If compensation were required for one but not the other, ‘the natural tendency of human nature’ would be to extend regulations ‘until at last private property disappears.’”

But Justice Roberts’ dissent, like Justice Kennedy’s opinion, wades more deeply through balancing tests than first principles. In a separate dissent, Justice Thomas gets it right. “I join the Chief Justice’s dissent because it correctly applies this Court’s regulatory takings precedents, which no party has asked us to reconsider,” he writes, “The Court, however, has never purported to ground those precedents in the Constitution as it was originally understood.”

The Court has interpreted the Takings Clause to cover a “direct appropriation of property,” Justice Thomas continues, but has fallen short in extending the law to the real loss of value inherent in the web of government regulations. Instead of digging in the weeds, Justice Thomas wrote, it would be good for the Court to “take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning” of the Constitution. We await that day.

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