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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Thursday, June 17, 2010 ::
    Justice Kennedy, concurring, says:
    The Court’s Takings Clause jurisprudence has expanded beyond the Framers’ understanding, as it now applies to certain regulations that are not physical appropriations. See Lucas, supra, at 1014 (citing Mahon, 260 U. S. 393 ). But the Court should consider with care the decision to extend the Takings Clause in a manner that might be inconsistent with historical practice.
    Take a picture, everyone: Justice Kennedy is coming out against interpreting the Constitution in a manner "that might be inconsistent with historical practice."

    Oh no wait, that's just the Takings Clause. Interpreting the Constitution in a manner "that might be inconsistent with historical practice" is what we have the Due Process Clause (14th Am) for:
    If and when future cases show that the usual principles, including constitutional principles that constrain the judiciary like due process, are somehow inadequate to protect property owners, then the question whether a judicial decision can effect a taking would be properly presented.
    Kennedy isn't much for rules, like the Takings Clause (which, as the plurality points out, specifies what may not be done to people, not who may not do it), but he's big on "principles." For him, even the Takings Clause is not a rule, it's a principle, and it doesn't even protect property as an end in itself -- that would be way too mundane -- rather, it protects property only instrumentally:
    The Takings Clause is an essential part of the constitutional structure, for it protects private property from expropriation without just compensation; and the right to own and hold property is necessary to the exercise and preservation of freedom.
    Now, it seems from a properly wooden reading of the Constitution that the Framers protected property via the Takings Clause because they believed in property. Or, if they did protect property in order to protect freedom, the choice to protect freedom by protecting property was the one they made. This -- and not freedom in general -- is what Justices have to enforce.

    For this choice the Framers have been bashed by the Beard school, and praised by many others, but whatever -- it's what they did. Oh no, though, Beard and his opponents alike had it all wrong: the Framers only protected property because they thought it was "necessary to the exercise and preservation of freedom." If some day it turns out not to be, or if "the exercise and preservation of freedom" becomes properly subordinate to other interests, Justice Kennedy will let you know:
    If a court deems that, in light of increasing urbanization, the former rule for allocation of these costs should be changed, thus shifting the rights of the owners, it may well increase the value of one property and decrease the value of the other. This might be the type of incremental modification under state common law that does not violate due process, as owners may reasonably expect or anticipate courts to make certain changes in property law. [Emphasis added]
    Yes, of course, "[t]he usual due process constraint is that courts cannot abandon settled principles." As in Lawrence, right?

    :: David M. Wagner 10:34 PM [+] ::

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