Constitutional Wish Granting and the Property Rights Genie
Brownstein, Alan E., Constitutional Commentary
Finally, in Dolan v. City of Tigard,(2) a recent Takings Clause case, Chief Justice Rehnquist seemed to suggest that the long sought after wish was about to be granted. In rejecting Justice Stevens' dissenting argument that business regulations deserved "a strong presumption of constitutional validity,"(3) the Court cited decisions invalidating warrantless searches of business property and striking down restrictions on commercial speech.(4) Rehnquist then proclaimed in unequivocal terms, "We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances."(5)
As any reader of fairy tales can report, however, asking powerful entities like genies or supreme court justices to grant one's wishes can be a precarious undertaking. The wish maker is often likely to end up with sausages on their spouse's nose or suffering some other unanticipated calamity.(6) The same fate can easily befall lawyers and judges who think that the doctrinal grass is always greener in the cases protecting some other right than the one they are asserting and, accordingly, demand equal treatment. Instead of doing the hard work of explaining the unique purposes that justify the protection of an interest as a right in particular circumstances, such jurists insist that an interest, such as property, deserves the same form or level of constitutional protection afforded some other distinct interest because both interests are "rights."
The purpose of this essay is to demonstrate the intellectual bankruptcy of this kind of constitutional reasoning as it applies to property rights and the Takings Clause. Taking property rights proponents at their word, I analogize property to other constitutionally recognized interests to suggest just how much currently provided protection property rights might lose if they were treated comparably to other enumerated and non-enumerated rights. I conclude that the only appropriate way to protect property for constitutional purposes is to examine this right independently of other rights and to develop a suitable jurisprudence of property rights that is grounded on the nature of property as an interest, not in terms of its poor or rich relation to other rights.
I. THE TAKINGS CLAUSE AND STATE ACTION
Regardless of the substantive content of a right or the purported rigor of the review provided to laws that arguably abridge the right, no constitutional issue arises unless the threshold of state action is passed.(7) Both the Takings Clause of the Fifth Amendment and takings principles incorporated into the Due Process Clause of the Fourteenth Amendment are governed by this basic limitation of the Constitution's coverage. Private individuals do not "take" property for constitutional purposes anymore than private individuals "abridge" freedom of speech. Only the state can violate the Constitution by impairing rights.
Over the last two decades, however, the Court has systematically restricted the scope of state action by narrowly construing or distinguishing earlier Warren Court precedent.(8) In doing so, it has implicitly insisted that state action principles must be applied consistently and mechanically - regardless of the underlying constitutional cause of action that is at issue.(9) Thus, if the Takings Clause deserves an equal seat in the pantheon of rights, one must necessarily conclude that Takings claims are limited by the same state action requirements that are applied to other, supposedly more favored rights.
One important state action case is Flagg Brothers, Inc., v. Brooks.(10) In Flagg Brothers, plaintiff challenged the actions of a warehouseman who proposed to sell the goods that he had been storing for her on the grounds that she was in default on her storage bill. Plaintiff argued that the sale of her belongings without a hearing and prior judicial determination that she was in default for the alleged amount owed constituted a deprivation of her property without due process of law. …