Last Friday, the Supreme Court issued an important regulatory takings case, refining the test to be used to determine what is the appropriate unit of property to use to assess the impact of a regulation. It’s an interesting case and I think that the Court probably got it right. However, that’s not what caught my eye about the case. To me, Justice Thomas’s dissent is the most intriguing.
Justice Thomas, while joining the principal dissent, separately acknowledged that the Court’s regulatory takings jurisprudence “has never purported to ground those precedents in the Constitution as it was originally understood.” In other words, the original decision on regulatory takings, Pennsylvania Coal Co. v. Mahon, made the concept of a regulatory taking up out of whole cloth. Nice of Justice Thomas to concede that. Justice Thomas would like to see whether the concept:
can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment.
I have another idea. Why don’t the conservatives on the Court admit as a group that the concept of a regulatory taking cannot in any way be seen as consistent with original intent. The liberals on the court could take a different path and acknowledge that the concept has outlived its usefulness. They could then unanimously overrule Mahon.
On this front, I note that Justice Gorsuch, who has quickly emerged as the great hope of original intent scholars, did not participate in the case. If he wants to really demonstrate his credentials, why not show them by supporting original intent, even in the regulatory takings area, where conservatives like the concept, but can’t find any basis for it in the actual words of the Constitution? That would prove he really means it.