Taking Stock of Takings: An Author's Retrospective
Epstein, Richard A., The William and Mary Bill of Rights Journal
I. TAKINGS A GENERATION LATER
It is my very great pleasure to write a short response to these presentations given at the conference held in connection with the decision of the faculty of the William & Mary School of Law to designate me as the recipient of the second Brigham-Kanner prize. I am especially grateful that the prize was awarded for my book Takings,1 which seems after twenty years to have weathered at least some of the scathing criticisms sent in its direction on the occasion of its publication.2 Before commenting briefly on the three papers in this symposium, let me express my continued puzzlement as to why the book has attracted such fierce criticism. The obvious reason is that my extended analysis of the Takings Clause ended with the "modest" conclusion that the vast redistributive programs of the New Deal were in fact unconstitutional if the Takings Clause was given its proper interpretation, one that properly combined its specific language with its larger intellectual structure.3 Everyone knows that the clause itself says, "[N]or shall private property be taken for public use, without just compensation."4 As Eric Claeys points out, an aggressive reading of this clause cannot be blithely dismissed as suffering from the oxymoronic features of substantive due process.5 Clearly, the text of the clause contains no internal contradiction. The key interpretive question asks what weight should be given to each of its constituent terms.
To start with the first key term, private property is one of our most comprehensive social institutions, so it seems odd to give it a narrow construction that bears scant resemblance to the term "private property" as it is used in the private law. Land and chattels are obviously part of the overall picture. And more importantly all interests in land - leases, mortgages, life estates, reversions - are part of it as well. When John Locke wrote that property embraced our "Lives, Liberties and Estates,"6 he gave private property a broader definition than the standard account, by including the personal freedoms that in practice seem to be better located in the constitutional protections for speech, contract and religion. But even if these interests are excised, the Takings Clause still covers a lot of turf, and it is not a sensible construction of the phrase to try to limit it to, for example, the protection of the right to exclude only when the conception from Roman times forward has always included the rights of use and disposition as well.7
So perhaps then we could narrow the meaning of the clause by putting tough emphasis on the term "taken" which could be limited only to the outright physical dispossession of property. But it would be odd in the extreme to hold that the state has not taken property when it strips a mortgagee of his lien, when it denies the holder of a future interest the right to enter his land on the termination of a life estate, when it prohibits the holder of a patent from practicing his art, or when it requires the owner of a trade secret to share it with the rest of the world. Clearly a sensible reading has to accept that the meaning of the term "private property" covers liens, future interests, and intangible forms of property. The full range of private law interests are implicated by the clause, and any removal of rights from the standard bundle of rights - a phrase which will be addressed more later - subjects the government action to examination under the Takings Clause. Thus if a party lets a friend into his house for a day, and that person refuses to leave when the invitation has expired, it is just word play to insist that property has not been taken because the entrance was lawful even though the tenant's holdover was not. Yet the constant effort to situate rent control statutes outside the law of takings rests on the odd conceit that the holdover tenant has not displaced the original owner.8
The clause's coverage, moreover, does not stop with this individual taking. …