C—
The Liberal Dilemma of Takings Law

1—
Property and the Constitution

Clearly, the Framers thought that private property was essential to human liberty, or they wouldn't have given it such extraordinary protection. The Takings Clause was to stand as a barrier between politics and law, between the public and the private. As Jennifer Nedelsky says:

The idea of boundaries and of a sharp distinction between law and politics has been central to the American conception of limited government. Property was for 150 years the quintessential instance of rights as boundaries. It has been the symbol and source of a protected sphere into which the state cannot enter.^[8]

This is why Charles Reich in the 1960s thought he could protect welfare recipients from governmental caprice by redefining their entitlements as "new property."^[9]

The traditional barrier role of property is most consistent with the Lockean libertarianism of the Federalists. If property is a, or even the, natural or fundamental right of man, and if man entered into the social contract in order to protect his natural rights, then, by definition, to be legitimate, a government must protect private property rights. The jurisprudential and political problem this raises is obvious. Virtually all government regulation directly or indirectly affects somebody's property.

This becomes even more problematic if one reads into the Takings

[8] Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy 8 (1990). Vandeveld similarly claims that

[p]roperty and its counterpart, sovereignty, have been understood as generic terms for, respectively, the collection of freedoms held by the individual and the collection of powers held by the state. In very real terms, the concept of property has marked the boundaries of individual freedom and the limits of state power.

Kenneth Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property , 29 Buff. L. Rev. 325, 328 (1980). In Jeremy Paul's words, "Therefore a concept of property is necessary to render the Constitution an effective safeguard against excessive governmental interference with individual life." Jeremy Paul, The Hidden Structure of Takings Law , 64 S. Cal. L. Rev. 1393, 1409 (1991).

[9] "The institution called property guards the troubled boundary between individual man and the state." Charles A. Reich, The New Property , 73 Yale L.J. 733 (1964).

Even a critic of traditional property notions such as Thomas Grey admits its traditional "sanctity" in our society. Thomas C. Grey, The Disintegration of Property, in Property 69, 81 (J. Roland Pennock & John W. Chapman eds., 22 Nomos, 1980). Nedelsky, also critical of the continuing viability of traditional property concepts, correctly identifies property as being "mythical" in the affirmative sense of that term. Nedelsky, supra note 8, at 8–9, 224–25.

Clause the Madisonian definition of property that, as we have seen, included not only rights with respect to material things (like land and cattle) and intangibles (such as debts and intellectual property) but also all things which fall within the philosophical concept of "objects" such as our bodies and minds (i.e., our talents, opinions, religion, speech, etc.). Richard Epstein^[10] and Robert Nozick^[11] are no doubt correct that, if one were to adopt this extreme version of the libertarian theory of property, only the most minimalist state could be justified.

Classical liberalism, broadly understood, is by far the dominant political philosophy in this country, but radical libertarians are certainly in the minority. Yet every other school of liberalism faces paradoxes when it confronts the Takings Clause. For example, it is possible to take a moderate Lockean approach that recognizes property as one, but not necessarily the only, right (natural or otherwise) which government should protect. But then, how can one balance between competing natural rights and fundamental interests? Contractarians, such as Hobbes, argue that in order to stop the war of all against all, man submitted himself to the unlimited power of the absolute sovereign who grants entitlements to citizens known as property.^[12] How then can we reconcile a constitutional provision that seeks to rein in the sovereign's power over property when, by definition, the social contract has ceded absolute power over property to the sovereign? Utilitarianism protects property instrumentally as a means of achieving the greatest happiness for society as a whole.^[13] Shouldn't the government then have some constitutional power to rearrange property entitlements if this would further the greater good? But how do we reconcile this with the utilitarian instinct that the best way to ensure utility (or wealth) maximization for society generally is to permit each individ-

[10] Richard Epstein, Takings: Private Property and the Power of Eminent Domain (1985).

[11] Nozick recognizes a natural right of property established by appropriation (either by the owner or by transfer from a legitimate owner). Robert Nozick, Anarchy, State, and Utopia 150–53, 174–82 (1974). He then asks what vision of the state is consistent with these rights. "So strong and far reaching are these rights that they raise the question of what, if anything, the state and its officials may do. How much room do individual rights leave for the state?" Id . at ix.

[12] These descriptions of various schools of liberalism might be so simple as to border on caricature, but they are sufficient for the limited use to which I am putting them. For an excellent concise description of Hobbesian contractarianism, see Michel Rosenfeld, Contract and Justice: The Relation Between Classical Contract Law and Social Contract Theory , 70 Iowa L. Rev. 769, 790–98 (1985).

[13] Id . at 798–802.

ual member to maximize his own utility (or wealth) in the marketplace? On the one hand, an egalitarian liberal might argue that at least some limitations on the property rights of the most wealthy could be constitutionally justified in the name of distributive justice.^[14] On the other hand, an egalitarian might simultaneously recognize that the government's right to take property should be limited because it can so easily devolve into a disguised unequal and, therefore, unjust tax levied against a specific targeted individual, rather than against similarly situated people generally.^[15]

In any event, our Constitution does expressly prohibit uncompensated takings of property by the government, and we lawyers need to decide what this means. Moreover, all of the major schools of liberalism recognize some fundamental liberty interest in property—either as a natural right or a right necessarily created by positive law in order to protect other natural rights such as autonomy, the pursuit of happiness, or equality. Yet all but the most extreme libertarians recognize other fundamental interests that justify at least some governmental limitations of property interests. This raises obvious line-drawing problems: when do government regulations so interfere with property rights that we say that the property has been taken?

[14] My colleague Michel Rosenfeld describes egalitarian liberalism, as conceived by Thomas Nagel, as assuming that

there is "moral equality between persons" and that each person has "an equal claim to actual or possible advantages." Moreover, besides being on the main forward-looking, egalitarianism "establishes an order of priority among needs, and gives preference to the most urgent." . . . Further, Nagel emphasizes that "the essential feature of an egalitarian priority system is that it counts improvements to the welfare of the worst off as more urgent than improvements to the welfare of the better off."

Michel Rosenfeld, Affirmative Action and Justice: A Philosophical and Constitutional Inquiry 116 (1991) (quoting Thomas Nagel, Mortal Questions (1979) (citations omitted)).

[15] This, for instance, is Frank Michelman's explanation of the justifiable purpose of a takings clause. If the government wishes to create a public park, it is justified in taxing all citizens, or even all wealthy citizens and no poor citizens. But it is unjust to make one individual pay the lion's share of the cost of the park through forfeiture of his land, while other individuals of similar wealth are not required to contribute in similar ways through taxation. Frank Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law , 80 Harv. L. Rev. 1165 (1967). The Supreme Court has on occasion adopted this as a justification for the Takings Clause. ("Fifth amendment's guarantee . . . [is] designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40, 49 (1960).)

Interestingly enough, as is so often the case, this theory which was developed to further a progressive political agenda has been co-opted to serve other purposes. Egalitarian-type arguments are currently being used by supporters of legislation which would define certain pollution control requirements as takings which require compensation.

The need to draw lines does not, however, in and of itself make takings jurisprudence uniquely difficult. Law requires us to do this all the time. We typically do this through positive law—whether formally adopted by the legislature, promulgated through case law, or developed informally through custom and practice. The uniqueness arises under liberalism because, if the Takings Clause is the vital barrier between the public and the private, then the usual devices of positive law are inapt for this task. This is precisely because the Constitution is supposed to be above politics and positive law.

The chaotic state of the case law suggests that the Supreme Court has so far been unable to solve this dilemma. Commentators feast upon the irrationalities and inconsistencies of the precedents, and decry either the oversolicitousness toward vested interests or inattention to fundamental rights. Only a handful of critics, however, have ventured to offer a resolution.

2—
The Supposed Disintegration of Property

As discussed in chapter 2, section III.A, some progressive commentators have concluded that the concept of property and the prohibition on uncompensated takings are so internally incoherent that they are disintegrating before our very eyes.^[16] This conclusion is based on two observations.

First, the liberal justification for the protection of property in the Constitution is, as we have seen, that private property is a right that is either natural in and of itself or fundamental in the sense of being necessary for the protection of other natural rights, such as autonomy, the pursuit of happiness, or, to a more limited degree, equality. Yet property is also a legal right that exists only insofar as it is enforceable in a court. Specific property rights are often not merely delimited, but created, by positive law. For example, copyright is a relatively modern creature of legislation. Nedelsky, in effect, asks, "How can property both be a natural right and a right created by positive law?"^[17] If it is a right created by positive law, how can it serve as a limitation on the government's power to adopt pos-

[16] See, e.g ., Grey, supra note 9, at 74.

[17] "Property has also carried with it the paradox of self-limiting government: it is the limit to the state; it is also the creature of the state. In property, the state sets its own limits." Nedelsky, supra note 8, at 8. "It is now widely accepted that property is not a limit to legitimate governmental action, but a primary subject of it." Id . at 231.

If property is not a "thing," not a special entity, not a sacred right, but a bundle of legal entitlements subject, like any other, to rational manipulation and distribution in accordance with some vision of public policy, then it can serve neither a real nor a symbolic function as boundary between individual rights and governmental authority.

Id . at 239.

itive laws reducing property rights?^[18] To a Hegelian, the first question is not a philosophical problem, although the second remains intractable as a logical matter.

3—
The Seemingly Endless Diversity of Property

We have seen that progressive critics such as Grey and Nedelsky fixate on the fact that empirical manifestations of property can consist of a seemingly bewildering variety of rights. For example, even though we colloquially say that an owner of a fee simple absolute estate in realty has unlimited rights of possession, enjoyment, and alienation of the object of her property, every lawyer knows these rights are in fact limited: at a minimum, her right of continued possession may be subject to the state's taxation power, her right of enjoyment is subject to nuisance restrictions, and her right of alienation is limited by antidiscrimination laws. In practice, most owners' rights are even more restricted by, for example, easements (which restrict the right of possession) and zoning restrictions (which can restrict the rights of enjoyment and alienation).^[19]

How then, these critics ask, can we speak of "property" as an identifiable set of rights when we recognize such variant combinations of rights as property? I have already given the Hegelian reply: we can so long as we stay at the appropriate level of generality. It does not follow from this, however, that all empirical actualization of property must be full, complete, or perfect. If one grasps that the Hegelian notion of the elements of property is to be understood at the highest level of abstraction, then one can see that they can be actualized in a dizzying array of concrete manifestations. Nevertheless, all of those legal relations that we tradi-

[18] As explained by Paul:

In more general terms, how can government simultaneously be responsible for establishing the property rights of the citizenry and also be entrusted not to render its constituents helpless when conditions dictate defining property rights so as to benefit public officialdom? In property theory, this might be called the problem of positivism.

Paul, supra note 8, at 1411.

[19] It is common to speak of fee simple absolute as being the most complete property right in realty. This may be true as an empirical matter, but not a theoretical one. Only the sovereign has the highest unlimited allodial estate. For an excellent discussion of the restrictions placed on "fee simple absolute" see Stewart E. Sterk, Neighbors in American Land Law , 87 Colum. L. Rev. 55 (1987).

tionally recognize as falling within the rubric "property" can contain some form of each of the three elements of possession, enjoyment, and alienation. The more adequate the manifestations of the three elements of property, the more likely we will label the right "ownership." If the manifestations are not as adequate, we are likely to give a different label to the right.

4—
Rights Chopping

The conclusion that the abstract jurisprudential concept of property is internally coherent as a theoretical matter within Hegelian jurisprudence begs, rather than answers, the practical question posed by the Takings Clause. One approach to this Hegelian analysis is the super-libertarian position taken by Epstein and Chief Justice Rehnquist introduced in chapter 2, section III.A, which I called "rights chopping." A rights-chopping analysis recognizes as inadequate the historical takings rule, as embraced in Loretto v. Teleprompter Manhattan CATV Corp .,^[20] that holds that a taking is most readily found when there was "permanent physical invasion of real property": it identifies property too closely with one element—possession—and further identifies possession with one of its many possible manifestations—physical custody of tangible things. That is, it adopts the positive masculine phallic metaphor. If interference with the one element of possession is a taking, then regulations that interfere with either of the elements of enjoyment and alienation should also be takings.

Super-libertarians such as Epstein would no doubt argue from this that, since property necessarily consists of manifestations of the three abstract Hegelian elements, any attempt to chop off any piece of any element in and of itself is a taking. That is, any curtailment of any empirical manifestation of any of the three abstract elements is, by definition, an interference with property rights and, therefore, a taking. Virtually all government regulations are per se takings. If one adopts the libertarian proposition that property is a natural right, then only the most minimal form of government can be justified.

We have seen that Radin suggests that the result that flows from the super-libertarian reading is so absurd as to demonstrate the fallaciousness, not the power, of the chopping argument. I agree. Indeed, because the super-libertarian approach comes close to including everything within the rubric "property," it threatens to deprive property of its analytical power as a separate, distinguishable legal category.

[20] 458 U.S. 419 (1982).

But this critique can easily suggest an opposite, equally fallacious, conclusion. If property rights can be actualized in any number of empirical variations, can't we declare that a claimant still has "property" and has not been subject to a taking no matter how much of her empirical rights we chop away so long as we leave her with de minimis concrete stubs of the three abstract elements? This would, obviously, give the government great power to regulate freely without compensating persons whose property is merely diminished but not totally destroyed. Of course, the problem with this is the mirror image of the super-libertarian error—it so minimizes the essence of property that it robs it of analytical value.

Other progressives wish to preserve the traditional inspirational rhetoric of property, yet redirect it to other more "progressive" purposes. This requires that they attempt to redefine property. Prominent examples of such approaches are those of Joseph Singer, who would base property rights on reliance interests and the relative power and dependence of rival claimants,^[21] and Radin, who (as we have seen) would give full constitutional protection only to that subset of the potential objects which she calls "personal property."

These new conceptualizations of property require corresponding reconceptualizations of the purpose of the Takings Clause. For example, Frank Michelman argues that the Takings Clause is designed to prevent the state from unjustly imposing tax burdens on individuals that are not generally imposed on all other similarly situated persons. Radin thinks that the Constitution should be read as a whole to further "human flourishing." Since these approaches undermine both the fundamental nature of the right of property—treating property instrumentally as a means to serve other ends—and, by extension, the barrier function of the Takings Clause, they also ameliorate the jurisprudential problem of developing a strictly logical or "objective" definition of property and takings. Consequently, Singer and Radin are both self-described "pragmatists" who advocate that courts use a situated, context-intense, case-by-case approach in deciding legal issues.^[22]

[21] Joseph William Singer, The Reliance Interest in Property , 40 Stan. L. Rev. 611 (1988).

[22] Margaret Jane Radin, Market-Inalienability , 100 Harv. L. Rev. 1839, 1856–83 (1987); Margaret Jane Radin, The Pragmatist and the Feminist , 63 S. Cal. L. Rev. 1699 (1990); Margaret Jane Radin, Lacking a Transformative Social Theory: A Response , 45 Stan. L. Rev. 409 (1993); Joseph William Singer, Book Review: Should Lawyers Care About Philosophy ? (reviewing Richard Rorty, Contingency, Irony and Solidarity (1989), and Elizabeth V. Spelman,Inessential Women: Problems of Exclusion in Feminist Thought (1988)), 1989 Duke L.J. 1752; Joseph William Singer, Property and Coercion in Federal Indian Law: The Conflict Between Critical and Complacent Pragmatism , 63 S. Cal. L. Rev. 1821 (1990); Joseph William Singer, A Pragmatic Guide to Conflicts , 70 B.U. L. Rev. 731 (1990).

5—
Metonymy

An interesting variation of this critique has recently been offered by Louise Halper.^[23] She upbraids Justice Scalia for his opinion in the most prominent rights-chopping case, Lucas v. South Carolina Coastal Commission .^[24] In this case the Supreme Court held that a regulation which diminishes the value of a parcel of realty by limiting its commercial development can be a taking. She characterizes this as a metonymy.^[25] In her view he is confusing a part—value—for the whole—the land.^[26]

I would agree that this is indeed a metonymic trope, but not the one Halper identifies. The whole of property can never be the land itself, but only the claimant's rights with respect to the land. The land is only the object of these rights. Consequently, the metonymy that Scalia did make was to substitute a manifestation of one of the three elements of property—enjoyment manifested in the form of the right to development for monetary purposes—for the whole of the element of enjoyment, and to substitute the element of enjoyment for the entirety of property.

This analysis is particularly apt because Lacan identified metonymy as the feminine slippage of meaning, as opposed to the masculine slippage of metaphor.^[27] A threat to the feminine aspect of property causes Scalia modestly to avoid violation through a feminine trope.

[23] Louise Halper, Tropes of Anxiety and Desire: Metaphor and Metonymy in the Law of Takings , 8 Yale J.L. & Human. 31 (1996).

[24] 505 U.S. 1003 (1992).

[25] Halper, supra note 23, at 32, 35, 46. Specifically, it is a synecdoche. A metonymy is generally the substitution of an attribute of a thing for the thing. A synecdoche is a subset of metonymy—a part for the whole. Halper, like me, is influenced by Lacan, who thought that all linguistic meaning consisted of the slippage of meaning of metaphor and metonymy. Although the example he gives of a metonymy is arguably a synecdoche (see Jacques Lacan, The agency of the letter in the unconscious or reason since Freud, in Jacques Lacan, Écrits 146, 156 (Alan Sheridan trans., 1977) (1966)), it is clear from his analysis that he was not so limiting his definition. Lacan thought of metonymy as a substitution of "word-to-word ," as opposed to metaphor which is the substitution of "one word for another." Id . at 157. See Jean-Luc Nancy & Phillipe Lacoue-LaBarthe, The Title of the Letter: A Reading of Lacan 71–76, 96–97, 139–40 (F. Raffoul & D. Pettigrew trans., 1992).

[26] Halper, supra note 23, at 46–51.

[27] In Freudian terms, metonymy is displacement and metaphor is condensation. Jacques Lacan, The Seminar of Jacques Lacan, Book III, The Psychoses 1955–1956, at 221 (Jacques-Alain Miller ed. & Russell Grigg trans., 1993). See also Jane Gallop, Reading Lacan, 24–32 (1985).

In any event, whatever the form of the metonymy, Halper's argument is that one does not destroy the whole of property by merely interfering with its parts. The libertarian should (correctly) counter that since property is by definition a unity of constituent rights, the only way to destroy property is by destroying its parts. Indeed, if property logically consists of the unity of the three classic elements, the destruction of any one of the three elements by definition destroys the status of a claim as property.

Part of the problem, of course, arises because the very terminology of the Constitution reflects the positive masculine phallic metaphor. Property is a thing that can be taken away. All interferences with property rights are described in terms of castration—someone has taken my object of desire. My entitlements have been "severed" or "chopped." The remedy given by the Constitution for takings reflects the negative masculine phallic metaphor and the second masculine strategy for dealing with castration in which exchange replaces possession. That is, the significance of the loss of any specific object is denied on the grounds that it can be cured through receipt of an equivalent object sometime in the future. And so the Fifth Amendment provides that takings are permitted so long as the government pays "just compensation"—so long as the Father(land) fulfills his promise to his sons.

It is difficult to apply this masculine imagery of takings-castration to interferences with the feminine property elements of enjoyment. Frequently when enjoyment is lost, the owner retains possession of the object of desire. The intuitively appropriate imagery is that of rape, not castration. My thing has not been taken, rather my rights have been violated. This feminine imagery similarly suggests that the Takings Clause should not apply because the remedy seems inadequate. The loss of the feminine self in violation is permanent and cannot be cured through the masculine regime of exchange.^[28]

Where does this leave takings law? It is obvious that complete de-

[28] I have suggested elsewhere that Calabresi and Melamed's property-liability-inalienability analysis of environmental nuisances is inadequate for similar reasons. It imagines all environmental nuisances in terms of the masculine imagery of castration—the taking or exchange of a thing. Property rules privilege the masculine element of possession and seek to prevent the taking (castration). Liability rules privilege the masculine element of alienation and assume that all losses (castrations) can be cured through future exchange of an equivalent thing (i.e., the payment of damages). The problem is that in the classic environmental nuisance, no "thing" is taken. Rather, one party's enjoyment of his thing interferes with another party's enjoyment of hers. As the very terminology of "pollution" suggests, the loss is not experienced as castration but as violation. Jeanne L. Schroeder, Three's a Crowd: Calabresi and Melamed's Repression of the Feminine (1997) (unpublished manuscript, on file with author).

struction of all possessory rights constitutes a "taking" because possession is the most primitive element of property. That is, one can have no right of enjoyment or alienation unless one has at least some minimal possessory rights in the Hegelian sense. But unless we limit takings to complete, 100% deprivation of all property elements, aren't we stuck with what Halper calls a "metonymic" approach (a taking of some part will be treated as legally equivalent to the taking of the whole)? But doesn't this devolve into the libertarian argument that forbids virtually all government?

To put it another way, how can I argue that property is not a random or arbitrary collection of disparate rights (as the bundle-of-sticks metaphor implies) but a recognizable combination of rights, yet at the same time recognize that it is intuitively and empirically wrong to say that a property interest is always destroyed if any one of the rights that compose property is infringed? I believe that these statements are not incompatible for the same reason that a beach is still a beach after one removes one grain of sand; but, as anyone with shorefront property knows, as the sea keeps removing grains of sand year after year, the beach will eventually disappear. Although property consists of identifiable elements, it is itself an identifiable quality that cannot be reduced to a collection of elements.