The Inevitable Failure of Nuisance-Based Theories of the Takings Clause: A Reply to Professor Claeys

I. INTRODUCTION The Rehnquist Court has played a significant role in shaping the U.S. Constitution's Takings Clause. In the eighteen years since William Rehnquist became Chief Justice in 1986, the Supreme Court has reviewed more taking challenges and invoked the clause to invalidate more regulations than in the preceding eighty-five years of the twentieth century.1 Despite these extraordinary statistics, Professor Eric Claeys suggests that Chief Justice Rehnquist and his conservative colleagues on the Court have made little impression on takings law as it stood in 1986.2 Professor Claeys advances and defends four basic propositions. First, he concludes that in the battleground over takings jurisprudence, the Court's liberals have emerged as victors.3 Second, he suggests that the liberals have prevailed because they have a coherent theory of the Takings Clause, while the Court's conservatives do not.4 Third, he contends that originalism can provide conservatives with a coherent theory of the takings clause.5 Finally, he argues that the coherent theory originalism generates is a nuisance-based theory of the takings clause.6 Professor Claeys advances his propositions with clarity and defends them with vigor. Ultimately, however, three of his four propositions are difficult to sustain. Part II of this commentary demonstrates that the nuisance-based theory cannot provide a comprehensive basis for takings clause jurisprudence. Part III establishes that no plausible vision of originalism supports a nuisance-based theory. Part IV argues that the liberals, who generally support wide government latitude to regulate land use, have won the takings battle only if one defines victory as the failure to offer unconditional surrender; judicial scrutiny of state and local land use practices is significantly less deferential than it was at the inception of the Rehnquist court. Part IV, which traces the approach the Court's conservatives have followed in takings cases, concedes that Professor Claeys's argument is at its strongest when he contends that the Court's conservatives have developed no coherent theory of the takings clause. Indeed, to the extent he argues that Chief Justice Rehnquist and his colleagues have articulated no coherent theory, Professor Claeys is correct. But as I have argued elsewhere, the Court's takings jurisprudence begins to look like a coherent whole when one integrates issues of federalism and the Court's institutional role.7 II. THE DILEMMA OF NUISANCE-BASED THEORIES OF THE TAKINGS CLAUSE Government's universally-accepted power to control nuisances has long served as a justification for land use regulation. For example, in Hadacheck v. Sebastian,8 the Court sustained a prohibition on brickyards within an area of the City of Los Angeles, noting that the effect of a land use "upon the health and comfort of the community" serves to justify a prohibition on that use.9 The Court was even more express in Village of Euclid v. Ambler Realty Co.,10 where Justice Sutherland, in upholding the village's zoning ordinance, opined that "the law of nuisances . . . may be consulted, not for the purpose of controlling, but for the helpful aid of its analogies in the process of ascertaining the scope of [the government's police power]."11 Hadachek, Euclid, and subsequent Supreme Court cases assumed, therefore, that nuisance control was a sufficient basis for local land use regulation. To what extent, however, does nuisance law serve as the constitutional boundary for land use regulation? The Supreme Court has never regarded nuisance-control as the only permissible basis for land use regulation,12 although Justice Rehnquist articulated that position in his dissent in Penn Central Transportation Co. v. City of New York.13 Rehnquist argued that government could regulate without compensation in two circumstances: when government was prohibiting a "noxious use," or when the regulation applied over a broad cross-section of landowners, thereby securing an "average reciprocity of advantage. …