Document Type

Article

Publication Title

Washington University Journal of Urban and Contemporary Law

Abstract

Frank Michelman's eloquent testimony before the Senate Committee on Environment and Public Works shows yet again the intrinsic fascination of the takings problem and its long-term hold on the legal imagination. Spurred on by his opposition to Senate Bill 605, Professor Michelman launched into a broader examination of the relationship of private property to the police power. In his view, Senate Bill 605 represents a form of "private-property absolutism" which is "contrary to historic American constitutional understanding; and without the absolutist premise to support them, 'property rights' laws themselves lack any robust public justification." My purpose here is not to defend Senate Bill 605, which in my view contains some serious deficiencies-albeit ones that are not identical to those identified by Professor Michelman. Rather my target is his larger condemnation of the property rights movement for its alleged absolutism which Michelman believes to be at cross purposes with our traditional system of constitutionalism. The most obvious objection to Professor Michelman's position is that Senate Bill 605, for all its significance, is a statute, not a constitutional amendment. It represents an outgrowth of the same political process of give and take that Michelman celebrates in his testimony. Whatever the uniform line of Supreme Court decisions, nothing in them prohibits the state from supplying additional protections for property owners. Nor is there anything in the Supreme Court tradition that says that these protections have to be extended in all cases if they are extended in some. If someone wanted to single out wetland and endangered species regulation as crying out for some corrective political response, some narrow legislation could be introduced for that purpose alone. Hence, Michelman can oppose Senate Bill 605 or any more limited substitute for all sorts of practical reasons. But he is not on sound ground when he argues that this legislation, even if ill-conceived, somehow violates our long established constitutional traditions. But in this short comment, I shall put this point to one side and argue that even at the abstract level that he conducts the discourse, he misunderstands the intellectual power behind the property rights movement. The source of my disagreement can be briefly stated. The very acceptance of the power of the government to take property with just compensation is, without more, conclusive evidence that a sensible version of the property rights movement does not move toward any absolute conception of property. The text of the Eminent Domain Clause may not settle all questions, but it does at least resolve this one: the state may take for a public purpose so long as it pays.

First Page

17

Volume

49

Publication Date

1996

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