Line Drawing. Returning to yesterday's takings case. Stevens, in footnote 34, writes:

The Chief Justice offers another alternative, suggesting that delays of six years or more should be treated as per se takings. However his dissent offers no explanation for why 6 years should be the cut-off point rather than 10 days, 10 months, or 10 years. It is worth emphasizing that we do not reject a categorical rule in this case because a 32-month moratorium is just not that harsh. Instead, we reject a categorical rule because we conclude that the Penn Central framework adequately directs the inquiry to the proper considerations–only one of which is the length of the delay.

[BTW, since it's a fairly short note, I put the whole thing in; click here to see the opinion's text.] In fact, the CJ cites several state statutes which may be looked to for reference. [note: edited to remove all the 'referencing.'] Nevertheless, what's important here is that Stevens doesn't seem to think that a governmental taking for a period of six or even ten years is a big deal. Second, something Stevens quietly dances around is the arbitrariness of developing constitutional rules or lines as a means of determining when something is constitutional or not.

In his dissent, Rehnquist makes the point that if the government were to tell you it was leasing your land for a period of six years, during which you could visit it, but you couldn't build, plant, harvest and so on, and oh, by the way, we're not going to pay you a penny of rent. . . . we'll you'd be pretty steamed. This is exactly what happened here, except that it was for a series of years, back-to-back, so that the land owners never even knew for sure if and when this "temporary lease" was going to end.

From what I gather from reading the opinions (albeit, I admit, not that closely), it appears that the property owners advocated the Court establish a period of a year, beyond which, the restriction placed on the land owner should be considered a 'taking' requiring compensation under the Fifth Amendment. This seems entirely reasonable to me. All the court has really done is to establish that a moratorium of six years of development is not long enough to be considered a taking. What happens when litigants appear who have been under a 16 year moratorium -- or 60. At some point the court will be forced to say this is too long.

The Court frequently draws lines in time and substance -- creates rules without anything more than a toehold in the constitution. Think of the Miranda warnings, for example. You can't find them in the constitution, yet they are constitutionally required. Or the trimester scheme established in Roe v. Wade. There's nothing about trimesters in the constitution, but it shows up in the original Roe decision. (Of course there is nothing about abortion in the constitution, but that doesn't mean anything, does it?) Or consider some establishment clause cases. In in Board of Education v. Allen (1968), the Court said the loaning of textbooks to religious schools was okay, but in Meek v. Pittenger (1975) the Court said that loaning maps to these same schools was an unconstitutional establishment of religion (prompting Sen. Moynihan to wonder what it would do with atlases). A creche at Christmas is forbidden, unless there are a requisite number of reindeer and elves.

So I can't figure out why Stevens, O'Connor, Kennedy, Souter, Ginsburg and Breyer have a problem with a one year rule, or even a 2, 3, 5 or 6 year rule in this case.

Another thing, the unintended effect of this case will be to encourage reckless development, because if you buy land, fearing it might be subject to a moratorium, the best thing to do would be to immediately raze it and start pouring tar. In fact, Stevens encourages this mind-set in footnote 11: "The court stated that petitioners 'had plenty of time to build before the restrictions went into effect–and almost everyone in the Tahoe Basin knew in the late 1970s that a crackdown on development was in the works.'”

I remember reading about this a few years ago in rural Hawai'i. Some land owners -- native Hawai'ians held on to their land without developing it, because they were waiting for a responsible plan to develop it. Some other land owners, who knew that it was better to develop first, put up a series of ugly cheap buildings for no other reason than to have the land developed. The state government stepped in and capped development of undeveloped land which left the first group in the cold. The second group, was free to develop.

More Mark Byron proposes that Congress step in and adopt a plan for having the local jurisdictions compensate property owners who are subjected to long term moratoria, as what happened here. This sounds reasonable. My concern is that I really am a federalist. I believe in local control of these things and I'd hate to see Congress develop a national rule. If I had an editor, I might be asked why I would want the Supreme Court to impose a national rule, but not the Legislature. Excellent question. I wouldn't want the Court to impose such a rule. What I would want it to do would be to recognize that the Fifth Amendment to the Constitution imposes such a rule, in the form of the takings clause. All that would do would be to set a minimal floor -- a minimal level of protection, along the lines of the Miranda warnings, and leave it up to the States to develop rules consistent with this minimal level of protection.

I should clarify. I don't think the Supreme Court failed to expand the rights of property holders yesterday. I think those rights were established in the Constitution. I believe what the Court did was to actually cut out the rights of individuals and expand the power of local governments.

Still More Please read Fritz Schranck's commentary on this decision. He is an excellent writer and succinctly digests the majority opinion and provides commentary.