William Greider's "The Right and US Trade Law: Invalidating the 20th Century" [Oct. 15] purports to explain the close connection between my "radical" views of the "takings" clause and the current litigation under Chapter 11 of NAFTA, which, among other things, requires signatory states to pay compensation whenever their laws involve expropriation and acts "tantamount to expropriation" of the private property of citizens. His article is a troublesome mixture of truth and half-truth laced with selective quotations from our phone conversation.
Greider portrays me as an extremist and antigovernment ideologue who invented the theory of regulatory takings in order to defeat environmental regulation. He is wrong on every count. The idea that regulations that stop short of seizure of property could count as takings goes back at least as far as Justice Oliver Wendell Holmes's 1922 opinion in Pennsylvania Coal v. Mahon, which held that a regulation of the use of private property could be treated as a compensable taking if it went "too far." Even Greider, one hopes, would regard it as a taking for the state to forbid a landowner to enter his own property or to use it for any purpose at all, even if it did not seize the land. Any constitutional provision worth its salt has to be read to cover not only the precise wrong it identifies (e.g., takings) but also the substitutes available to states to achieve the same unconstitutional end.
Once it is accepted–as mainstream US law has long recognized–that some regulations are tantamount to takings, the question arises, Which ones and why? To sort out Holmes's tangled knot, I have long championed a three-part approach that is far less radical (and more coherent) than Greider's garbled account of my views suggests. The first point is indeed a departure from established law. It says that there is no principled way to decide that some limitations on land use are takings and others are not. Partial restrictions can come at all levels, from small to large, and the continuum cannot be broken at an arbitrary point simply by saying that some are too big and others too small.
By the same token, however, the willingness to think of all government regulations as takings most emphatically does not mean that all should be invalidated unless explicit compensation has been paid. At no point, for example, does Greider so much as mention the central place that implicit in-kind compensation plays in my system as a means for reducing the instances for which compensation is required. Many broad-based regulations do not only hurt property owners; they also benefit them by imposing like restrictions on neighbors. These benefits should count as compensation under the takings clause. In general this approach tends to validate broad-based regulation that both benefits and burdens regulated parties in equal proportion but does not save the regulation that imposes (usually by design) far greater restrictions on some landowners than on others. Zoning laws, for example, can fall into either category. In some cases they impose uniform restrictions (on exterior design, for example) that benefit the regulated landowner, and these restrictions can be imposed without any cash compensation.