Pictures of Justice Holmes and Justice Brandeis
What are the reasonable expectations of the purchaser when a person or a governmental agency purchases merely the surface rights to land and explicitly recognizes that the grantor (the Coal Company) has the right "to remove all coal" under the surface without any liability that may arise concerning damage to the surface estate? p. 811
In Pennsylvania Coal, Justice Holmes' majority opinion clashed with Justice Brandeis' dissenting opinion. Let's take a closer look:
Brandeis says the Kohler Act is not a "Taking" because a "restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking." (p.814). In other words, a taking for a public use is not a taking. Huh?
Holmes says that this police power purpose may satisfy the "public use" requirement, but it does not dispense with the requirement of "just compensation": "We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." (p. 813)
Also: "When this seemingly absolute protection [of private property from uncompensated takings] is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last private property disappears." Id. What point is Holmes making here?
Who do you think has the better of this argument?
Holmes says that the "general rule...is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking."
What does "too far" mean to Holmes? (see p. 813: "To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating it or destroying it.")
What does it mean to Brandeis? (see p. 815: "But values are relative. If we are to consider the value of the coal kept in place by the restriction, we should compare it with the value of all other parts of the land. That is, with the value not of the coal alone, but with the value of the whole property.")
This is what we sometime refer to as the denominator issue in the law of regulatory takings. Do you see what this issue is?
Certain Coal/Certain Coal vs Certain Coal/All Coal
What do you think? Would you have joined Holmes' majority opinion or Brandeis' dissent? Why?
See note 3, p. 815-816: In Keystone the Court basically adopted the reasoning of Justice Brandeis in Mahon to uphold as not-a-taking a law "remarkably similar to the Kohler Act."
Here are some additional questions that require digging deeply:
Suppose the police shut down an illegal drug house under laws prohibiting the sale of illegal drugs. Does this constitute a "taking" of real property that requires just compensation? If your answer is no (as I assume it is), how is this case different from Mahon?
Note 2 on page 815 asserts that "[a]t the time of its adoption, the Fifth Amendment was viewed as applicable only to physical acquisitions of land, not to regulations of land." What were the threats to property rights in 1791? Were landmark laws, zoning laws, and the ubiquitous restrictions of the modern Regulatory State anticipated at the time the Takings Clause was ratified? Does the original principle of "no confiscatory takings without just compensation," apply to modern confiscatory regulations? Should the First Amendment principle of "freedom of the press" apply only to 18th century media technology, because movies, television, and the internet were not anticipated at the time of the adoption of the First Amendment? Or does the original principle of "freedom of the press" apply to modern threats to free expression? Does the Fourth Amendment's protection against unreasonable searches protect us against modern kinds of searches, such as electronic surveillance and wiretaps? Can one be an originalist and in good faith support enforcing the principles of Just Compensation, privacy from unreasonable searches, and freedom of expression to modern threats to the liberties protected by the First, Fourth and Fifth Amendments?
In District of Columbia v. Heller, the 2008 case upholding an individual constitutional right to "keep and bear Arms," the Court referred to a similar argument against liberty as "frivolous":
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communication, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
In other words, originalism discerns the principle that defines the liberty, which then must be applied to modern threats against that liberty. It seems to follow that the Takings Clause applies to modern confiscatory takings of private property, including "regulatory" takings.
