The Armstrong Principle, the Narratives of Takings, and Compensation Statutes

INTRODUCTION The Takings Clause of the Fifth Amendment(1) is famous for inspiring disagreement. More than one hundred years have passed since the Supreme Court departed from the original understanding of the clause and interpreted regulations as potentially falling within its ambit.(2) Although the passage of time has established the principle that regulations can run afoul of the Takings Clause, the Court has been unable to offer a coherent vision of when compensation is required.(3) Academic commentators also have failed to reach agreement on the issue, offering an enormous range of solutions to the takings question.(4) The newest field of controversy involves compensation statutes.(5) In a few short years, the property rights movement's demand that both state and national legislatures provide compensation when government regulations diminish property value has won widespread support, which, since 1994, has begun to translate into legislative success.(6) The Contract with America provides that "property owners [are] to receive compensation . . . for any reduction in the value of their property" greater than ten percent.(7) Shortly after the 104th Session of the House of Representatives began, its members passed an act requiring compensation when certain regulations decreased the value of land by more than twenty percent.(8) Five state legislatures have passed statutes directing that property owners be paid for losses that they suffer as the result of governmental regulations.(9) The success of the property rights movement, however, has provoked a powerful response. Academic criticism has been sharp,(10) and political opposition has been intense.(11) Property rights legislation already has been repealed by referendum in Washington state(12) and rejected in an Arizona referendum.(13) President Clinton has threatened to veto any federal property rights bill.(14) Opponents of compensation statutes accurately have seen in both the proposed and enacted statutes a direct threat to the continued existence of the regulatory state: by requiring compensation for regulations these statutes will make the imposition of many regulations too costly. Given the extraordinary diversity of opinion about when compensation is owed, it would be only natural to expect that an equal lack of agreement would exist about what purpose the Takings Clause serves. The reality, however, directly contradicts that expectation. Justice Black crisply stated his view of the purpose of the Takings Clause in Armstrong v. United States:(15) The Takings Clause 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."(16) Justice Black's view has received a remarkable degree of assent across the spectrum of opinion.(17) The Armstrong principle has become, according to Professor Glynn Lunney, a part of the "ritual litany" employed in takings decisions.(18) The principle has been embraced repeatedly by Chief Justice Rehnquist and by Justice Scalia, the judicial champions of a broad reading of the Takings Clause,(19) as well as Florida's compensation statute.(20) It is contained specifically in the text of, and invoked in support of, various property rights proposals recently introduced in the Senate.(21) The champions of a narrow reading of the clause, Justices Brennan, Blackmun, Marshall, and Stevens have espoused the Armstrong principle with equal fervor.(22) At one level, this striking unanimity results from Justice Black's broad language. His language avoids confrontation of the hard question: What do fairness and justice require? People with very different ideas about fairness can accept the Armstrong principle while diverging sharply as to what it means. Nonetheless, cultural conventions exist to give the principle meaning. Bruce Ackerman has offered the leading scholarly treatment of cultural conventions concerning the Takings Clause in his book Private Property and the Constitution. …