Takings I

The government must take property for roads, for government buildings, for parks, military bases, airports and to preserve water supplies. The power to take private property for public purposes is essential to the ability to maintain, preserve and defend our republican form of government. In this section of law for laymen, we look at some of the constitutional requirements applicable to takings.

Fifth Amendment. The Fifth Amendment to the United States contains important protections against federal confiscation of private property. It states:

• No person .....[shall be ] deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Look carefully at the text of this amendment. It seems to provide two separate protections. The first prevents the federal government from depriving a person of property without due process of law. It applies to any deprivation of property, not just takings for public purpose. The second prevents the federal government from taking private property without just compensation. It requires compensation for confiscation of property for public purposes. This second, anti-confiscation provision, of the fifth amendment did not play a significant role in American Constitutional law in the first hundred years of our republic: you will not find a well developed series of Supreme Court case law until after the Civil War, because the Fifth Amendment applied only to the federal government. A confiscation (or takings) claim brought under that amendment had several significant hurdles. First, it must overcome very significant sovereign immunity hurdles applicable to suits against the federal government. Second a federal takings claim would involve Supreme Court interference with federal authorizing legislation. It is much easier for the Supreme Court to interfere with the legislative and executive actions of an inferior state sovereign than to interfere with actions authorized by coequal branches.

Fourteenth Amendment The fourteenth amendment to the United States Constitution extended the confiscation protection to citizens against their own states, and in so doing created both significant new protections for individual rights and a new avenue for federal interference with State and local democracy. Section 1 of the Fourteenth Amendment states:

• All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Compare the text of the fourteenth amendment's anti-confiscation provision to that of the Fifth Amendment. What is the significance of the difference? How did the anti-confiscation provision of the fifth amendment work its way into the fourteenth amendment? We cannot answer that question here: but early on, the federal courts began the process of gradual incorporation of the bill of rights protections into the fourteenth amendment.

With passage of the fourteenth amendment, then, the federal courts began to receive a flood of cases, primarily challenging State legislation on the grounds that it worked a confiscation without just compensation. Thus, in MUGLER v. KANSAS, 123 U.S. 623 (1887), we find Justice Miller recognizing the danger of this new role for the Courts. For the first hundred years of the republic, he pointed out, the Court rarely applied the anti-confiscation provision of the Fifth Amendment to federal actions:

• 'It is not a little remarkable that, while this provision has been in the constitution of the United States as a restraint upon the authority of the federal government for nearly a century, and while during all that time the manner in which the powers of that government have been exercised has been watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers [the confiscation protection] has rarely been invoked in the judicial forum or the more enlarged theater of public discussion.

But now, he complained, the courts were flooded with challenges to state action.

• But while it has been a part of the constitution as a restraint upon the powers of the states only a very few years, the docket of this court is crowded with cases in which we are asked to hold that state courts and state legislatures have deprived their own citizens of life, liberty, and property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of the provision as found in the fourteenth amendment. In fact, it would seem from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a state court of justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.

We should ever keep in mind the tension between federal protection of our civil liberties and federal interference with the exercise of democratic powers by state and local government.

Physical Occupation: The most straightforward takings claim arises when the government physically occupies some part of a landowner's property without compensation: this runs directly into the plain language of the amendment itself. It is a "taking" of some property without compensation. With certain exceptions, a direct physical occupation, temporary or permanent, represents a taking. In some few cases, we find disputes surrounding whether a government action in fact constitutes a physical direct and immediate occupation of land. A leading case is UNITED STATES v. CAUSBY, 328 U.S. 256 (1946), in which a landowner was subjected incessant low-level military flights well below the federally recognized aviation airspace. In requiring compensation, the Court held:

• The landowner owns at least as much of the space above the ground as the can occupy or use in connection with the land. See Hinman v. Pacific Air Transport, 9 Cir., 84 F.2d 755. The fact that he does not occupy it in a physical sense-by the erection of buildings and the like-is not material. ... In this case, as in Portsmouth Harbor Land & Hotel Co. v. United States, supra, the damages were not merely consequential. They were the product of a direct invasion of respondents' domain. As stated in United States v. Cress, 243 U.S. 316, 328 , 37 S.Ct. 380, 385, '... it is the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial, that determines the question whether it is a taking.' Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land.

Are all physical occupations a taking: In LORETTO v. TELEPROMPTER MANHATTAN CATV CORP., 458 U.S. 419 (1982), the Court considered a New York statute which required landlords to install CATV cable facilities on the roof of their buildings; the facilities were part of a city-wide cable network designed to bring cable services to the entire city. The landlords were required to provide a location for 6 feet of cable one-half inch in diameter and two 4" x 4" x 4" metal boxes at a one-time charge determined by the Cable Commission at $1. The City argued that the Court should apply a balancing test--that the invasion of property was minimal in comparison to the community wide benefit. But the Court's decision suggested that there was a per se rule requiring compensation in cases of this kind.

• In short, when the "character of the governmental action," Penn Central, 438 U.S., at 124 , is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.

Yet, as the dissent points out, there would seem to be all sorts of circumstances wherein the government may require installation of devices without compensation:

• ...the States traditionally - and constitutionally - have exercised their police power "to require landlords to . . . provide utility connections, mailboxes, smoke detectors, fire extinguishers, and the like in the common area of a building." These provisions merely ensure tenants access to services the legislature deems important, such as water, electricity, natural light, telephones, inter-communication systems, and mail service.

How do you square these requirements with the requirement for compensation in Loretto. Is it that the extinguishers belong to the landowner; is it that the extinguishers improve the value of the building, and so the compensation required is zero; or is it something else. In the next panel, we will look at some of the other issues confronted by federal courts in applying the anti-confiscation protection to the states.