The Takings Blunderbuss: From Pennsylvania Coal to Dobbs

Abstract

This Article explores three problems with the excess use of the Takings Clause (the "takings blunderbuss") that should cause concern not to left-wing judges and scholars who endorse seemingly unfettered activism from the bench and champion an organic view of the Constitution, but instead, and somewhat surprisingly, to conservatives who claim to eschew those practices. The first problem is that the text and original understanding, as far as we can discern, indicate that the Takings Clause was designed to ensure that owners receive payment when they are forced to sacrifice ownership of their tangible property for public use, most commonly through the process of eminent domain. Second, early experimentation with an expansive Takings Clause may once have made sense because (1) sovereign immunity shielded public defendants who caused monetary and other harms and (2) there were relatively few federal and state statutes that protected property owners from discrimination and other forms of governmental abuse. The current legal landscape, in contrast, provides many avenues of relief that do not require dramatically contorting the text of the Constitution. Third, Justice Holmes’s opinion in Pennsylvania Coal Company v. Mahon, which planted the seeds of regulatory “takings,” is a deeply flawed, problematic precedent that, according to the Dobbs factors highlighted by the current conservative wing of the Roberts Court, is ripe for overruling.

Keywords: takings, constitutional law, stare decisis, precedent, land use, property