The Takings Clause of the Fifth Amendment provides that when the government takes private property for a public purpose, it must compensate the property owner.1 One exception to this rule, the “background principles” exception, establishes that “the government does not take a property interest when it merely asserts a ‘pre-existing limitation upon the land owner’s title.’”2 For instance, if a landowner is creating a nuisance on his property, the government owes him no compensation for forcing him to stop, “because he never had the right to engage in the nuisance in the first place.”3 The concept is simple: One cannot lose what was never his.4
Background principles are a strong medicine.5 When a court analyzes a takings claim, it must first identify the property interest at issue before deciding the more complex, discretionary question of whether that property was “taken.”6 Background principles are “logically antecedent” to this analysis,7 meaning that they can foreclose an aggrieved property owner’s claim before the first step.8 If the court determines that, pursuant to a background principle, a plaintiff had no property interest to begin with, the government will completely evade takings liability for its interference with the plaintiff’s property.9 Judges, too, can use background principles to avoid difficult legal and factual questions that may arise later in the takings analysis.10
Background principles have a lot to offer the law of takings. For example, they can stabilize property owners’ expectations by aligning the Takings Clause with widely understood principles of property law.11 Indeed, the case that introduced the background principles exception — Lucas v. South Carolina Coastal Council12 — featured prominently the notion that property owners are on notice of background limitations.13 In Lucas, Justice Scalia explained that background principles, like all property rights under the Takings Clause, are rooted in state-specific law.14 By locating background principles in state law, Lucas ensured that takings law reflects property owners’ actual expectations.15
But despite its potential, background principles jurisprudence has long remained underdetermined.16 Scholars and courts have struggled with questions as basic as what counts as a background principle17 and what rationale justifies the exception.18 Notwithstanding these open questions, one deeply rooted feature of takings law has provided some degree of determinacy for the exception over the last several decades: the courts’ consistent use of state-specific law to define property interests.19 But recently, even this fixture has come into flux.
In recent years, the Supreme Court has increasingly defined property by looking beyond state-specific law, toward a more dynamic, unbounded body of what might be called “general property law”20 or “jurisdictionless property law.”21 Several scholars have commented on this shift.22 Some have argued that the recent general law cases “make[] a considerable amount of sense normatively and practically”23 because, among other things, they show that the Court systematically departs from state-specific law to prevent states from circumventing the Takings Clause by simply extinguishing a property interest.24 This argument trades on the tendency for general law interventions in an anticircumvention posture to protect, rather than undercut, property rights.
But that is only part of the story. A full examination of the ascent of general property law must also account for the recent emergence of general law background principles. Background principles found in the general law, rather than in state-specific law, complicate the dialogue around general property law because they serve as a basis for denials of otherwise viable takings claims. Yet many discussions of the sea change in constitutional property overlook the potentially problematic interaction between general property law and background principles.25
This Note fills that gap by demonstrating that the collision of ascendant general property law and the background principles exception could ultimately cause the Takings Clause to underprotect property interests. Part I provides background on the law of takings and describes the development of background principles jurisprudence. Next, Part II tracks the Court’s recent shift toward a general law approach to property. Finally, Part III challenges the intuition that federal courts primarily apply general law to protect property rights, for example by preventing a state from “extinguish[ing] a property interest . . . to avoid paying just compensation.”26 To do so, it examines two recent cases27 in the federal circuit courts that denied takings claims based on general law background principles. The general law approach may systematically underprotect property rights by increasing the level of generality at which background principles are defined, placing the burden on plaintiffs to find historical analogues entitling them to compensation, and undermining property owners’ notice of background limitations on their title.
I. Development of Background Principles Doctrine
This Part starts by providing a brief overview of the law of takings. After establishing that context, it discusses the development of the background principles exception.
A. The Basic Structure of Takings Law
The background principles exception is best understood in the context of the Takings Clause’s basic analytical framework. Claims arising under the Takings Clause follow two steps. First, courts discern the property interest at stake.28 Second, they analyze whether that property was “taken.”29 This analysis proceeds differently depending on the type of government action underlying the claim.
There are two principal types of government action that can result in a taking. First, physical takings occur when the government physically appropriates or invades private property30 — for example, by using the eminent domain power to seize land for a public road. Second, regulatory takings occur when the government interferes with property interests through its legislative power31 — for example, by passing a zoning ordinance. Not all regulations result in takings. After all, the “[g]overnment hardly could go on if” it had to pay for every interference with property rights.32 Instead, only “regulations [that] go[] too far . . . will be recognized as . . . taking[s].”33
Given the nebulous “too far” standard for regulatory takings, courts have enjoyed more discretion when analyzing regulatory takings than when analyzing physical appropriations.34 The resulting doctrinal uncertainty has been central to scholarly and judicial criticism.35 Although this uncertainty preserves judicial flexibility,36 it also destabilizes property holders’ expectations and raises concerns about the determinacy and stability of takings law.
The Supreme Court has responded to these concerns with several efforts to guide judicial discretion in regulatory takings cases.37 The first major effort arrived in Penn Central Transportation Co. v. New York City,38 which instructed courts to use a three-factor balancing test to analyze regulatory takings claims.39 But even with Penn Central’s added guidance, the law of regulatory takings continued to be criticized as being unduly vague.40 Indeed, the Supreme Court has “generally eschewed any ‘set formula’ for determining how far is too far,” instead “preferring to ‘engag[e] in . . . essentially ad hoc, factual inquiries.’”41 Still, continuing its effort to bring certainty to regulatory takings law, the Court has developed two types of categorical, or “per se,” takings — instances where a court could hold a regulation to be a taking without resorting to the unpredictable Penn Central analysis.42
First, a regulation that “denies all economically beneficial or productive use of land” is a categorical taking.43 In Lucas, the first case to recognize this rule, South Carolina passed a coastal protection law that prohibited David Lucas from building houses on his waterfront property.44 Analyzing the regulation, the Lucas Court recognized the new per se rule that a state could take property by regulating its economic value down to nothing.45 Having established the new per se rule, the Court remanded the case for the state court to determine, as a matter of state law, whether the land use regulation was consistent with “background principles of nuisance and property law” that would themselves have prohibited Lucas from building on his land.46
Second, regulations resulting in “a physical ‘invasion’ of . . . property” are categorical takings.47 This rule traces back to Loretto v. Teleprompter Manhattan CATV Corp.,48 which held that permanent physical invasions through regulations — for example, the required installation of cable equipment in an apartment building49 — are categorical takings.50 Recently, in Cedar Point Nursery v. Hassid,51 the Court broadened Loretto by establishing that “it is a per se taking whenever the government authorizes an involuntary entry to land,” regardless of whether that invasion is permanent or temporary.52
Cedar Point had the potential to provide greater clarity to the law of takings by expanding per se takings rules and therefore limiting the reach of Penn Central’s ad hoc balancing test. To this end, the Cedar Point Court swept some regulations into the realm of physical takings, bringing a greater class of legislation into the ambit of categorical rules.53 An access-permitting regulation can now be a per se taking regardless of whether it is partial or absolute, temporary or permanent, minute or substantial.54
Dissenting in Cedar Point, Justice Breyer cautioned that the new rule would endanger important legislation by subjecting it to per se rules that are insensitive to the public interest.55 To address this concern, the majority pointed to three existing exceptions to physical takings that could preserve property regulations serving valuable public purposes.56 Among these exceptions, the background principles exception from Lucas was perhaps the most significant.57 In the Court’s view, “many government-authorized physical invasions will not amount to takings because they are consistent with longstanding background restrictions on property rights.”58
By expanding the reach of takings law, Cedar Point made the limitations on takings doctrine — particularly background principles — more important than ever. As Penn Central’s reach declines and categorical rules ascend, governments will increasingly rely on background principles to justify their regulatory agendas. What originated as an exception to Lucas’s total-economic-wipeout rule has become one of the chief avenues for governments to sustain laws in the public interest. Given its growing significance, the exception deserves special attention.
B. Background Principles from Lucas to Cedar Point
Background principles, like Fifth Amendment “property” in general, have traditionally been tied to state law.59 In Lucas, for example, Justice Scalia, writing for the Court, remanded the case to South Carolina courts for a determination as to whether the regulation at issue was consistent with “restrictions that background principles of the State’s law of property and nuisance already place upon land ownership.”60 Indeed, it would seem logically inconsistent to apply background principles from some source other than South Carolina law if the relevant inquiry were, in fact, whether South Carolina recognized a given property right. Nevertheless, Justice Kennedy, concurring in Lucas, expressed a different view — that background limitations should derive from property owners’ “reasonable expectations,” which themselves should “be understood in light of the whole of our legal tradition.”61
Justices Kennedy and Scalia would continue to debate background principles’ source of law in a series of cases. In the next case involving background principles, Palazzolo v. Rhode Island,62 the Court confronted the question of whether a state statute can act as a background limitation on private property that changes hands after the statute’s enactment.63 In the process of answering that question, Justice Kennedy argued that Lucas grounded background principles in the “common, shared understandings of permissible limitations derived from a State’s legal tradition.”64 Concurring, Justice Scalia suggested that statutes are only relevant to the background principles analysis insofar as they reflect the state’s common law of “property and nuisance.”65
Next, in Murr v. Wisconsin,66 “Justice Kennedy, writing for the majority, suggest[ed] that the background limitations inquiry should be an ‘objective’ one, based on ‘background customs and the whole of our legal tradition.’”67 Chief Justice Roberts dissented, arguing that the majority erroneously departed from the Court’s consistent “declar[ation] that the Takings Clause protects private property rights as state law creates and defines them.”68
More recently, however, Chief Justice Roberts established background principles’ firm grounding in general law in Cedar Point69 — perhaps the most definitive case on the matter since Lucas. Cedar Point articulated the background principles exception as focusing on “longstanding background restrictions on property rights,”70 with no express requirement that these restrictions be based in state law. Indeed, the Cedar Point Court looked to general law sources — such as the Second Restatement of Torts — to identify “traditional common law” background principles.71 And the Court’s quotation of Lucas omitted its emphasis on state-specific law.72 Cedar Point thus connected the background principles doctrine that originated in Lucas with the development of general property law.
As the next Part will illustrate, the apparent shift from state-specific to general law background principles was perhaps inevitable given a broader, analogous change in the Court’s general understanding of property.
II. From State-Specific to Jurisdictionless “Property”
Lucas’s focus on state-specific law for defining background principles was consistent with the Court’s understanding throughout most of the twentieth century that the word “property” in the Fifth Amendment had no inherent federal meaning.73 During this period, the Court adhered to the notion that the Constitution references property rights, but that those rights are generally created and defined by state law.74 As the Court explained in Board of Regents of State Colleges v. Roth,75 “[p]roperty interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.”76 Professor Stewart Sterk traces this reliance on state law (as opposed to general law) as far back as Pennsylvania Coal Co. v. Mahon77 — the first case to recognize a regulatory taking.78 Pennsylvania Coal, Sterk argues, emphasized state law’s importance for regulatory takings analysis by identifying specific property interests enshrined in state common law and legislation.79 And by the late twentieth century, the Supreme Court routinely relied on state law to define property rights in cases challenging actions by state governments.80 By “defer[ring] to state-specific property principles,” federal courts upheld property federalism and the accompanying “belief that property is an inherently local matter and that different states might opt to recognize and regulate property interests differently.”81
Recently, however, the Supreme Court has increasingly departed from its commitment to state-specific law, instead defining property rights in reference to a form of “unmoored multistate law.”82 In Murr, the Court used “jurisdictionless property law”83 to address the problem of how to define “the relevant parcel” in its regulatory takings analysis.84 The Murr siblings owned two adjacent lots of land.85 They sought to keep a home on one of the lots and to sell the other one.86 But pursuant to a Wisconsin regulation, the lots were “effectively merged[,] . . . so [the family] ‘could only sell or build on the single larger lot.’”87 The Murr siblings claimed that the merger regulation took their distinct property entitlement in the smaller lot.88
Justice Kennedy, writing for the Court, held that the two lots formed “a single parcel” for the takings analysis.89 Citing concerns that Wisconsin had extinguished property rights to circumvent Takings Clause liability, the Court devised a tripartite test — which undoubtedly “sounded in federal law”90 — for defining property boundaries when the Court suspects gamesmanship.91 When the Court analyzed the Murrs’ claim, it focused not on Wisconsin law (which “arguably” cut against the majority’s result92) but instead on a “longer history of regulations from as far away as New York that would treat their two parcels as one.”93 In dissent, Chief Justice Roberts criticized the majority for looking beyond “state and local law” and thereby eliding the “traditional approach . . . in regulatory takings cases,” under which “[s]tate law defines the boundaries of distinct parcels of land, and those boundaries . . . determine the ‘private property’ at issue.”94
A few years later, Chief Justice Roberts, writing for the Cedar Point majority, applied a general law approach.95 To justify Cedar Point’s expansive rule that any physical invasion effectuated through a regulation constitutes a taking, Chief Justice Roberts first concluded that “property” entails the absolute “right to exclude,”96 which “cannot be balanced away.”97 Because “the right to exclude is ‘universally held to be a fundamental element of the property right,’”98 a regulation burdening this right categorically creates a Fifth Amendment taking.99 The Court’s exaltation of the right to exclude, and its subsequent holding that the California access regulation was a taking, rested on Blackstone’s Commentaries, a law review article, and Supreme Court precedents.100 In fact, the Court effectively prioritized general law over state law. As Professor Maureen Brady observes, “the Court used a selective general-law approach to elide the question whether the longstanding California access regulation should constitute a background principle limiting agricultural owners’ title.”101
Cedar Point’s general law approach is particularly striking because the majority itself acknowledged that “property rights . . . are creatures of state law.”102 Yet the Court nonetheless declined to apply the traditional state-law approach to defining the property interest by reiterating its fears of gamesmanship: The state, it said, “cannot absolve itself of takings liability” by manipulating property rights.103
The Court’s most recent foray into general property law, Tyler v. Hennepin County,104 was also motivated by gamesmanship concerns. In that case, a Minnesota county foreclosed on Geraldine Tyler’s home to satisfy her overdue taxes.105 Because the home was worth more than the tax balance, the home’s sale resulted in a surplus.106 Acting with the express authorization of a state statute first enacted in 1935,107 Minnesota kept the surplus instead of returning it to Tyler.108 She then sued the State under the federal Takings Clause, arguing that the surplus value from the sale was her property and that the State had taken it unlawfully.109
Addressing the question of whether Tyler had a property interest in the surplus, the Court’s historical analysis spanned from the Magna Carta to the present.110 The Court held that the 1935 statute was invalid in part because Minnesota’s rule allowing state retention of surplus equity “remains the minority rule today: Thirty-six states and the Federal Government” maintain the opposite rule.111 This holding reversed the Eighth Circuit, which had considered a wider breadth of Minnesota law to conclude that the foreclosure statute had not impermissibly abrogated a constitutional right to the surplus.112
The Tyler Court’s anxiety about property gamesmanship was not new. Indeed, the gamesmanship concerns in Tyler, Murr, and Cedar Point followed from a long tradition of courts and scholars acknowledging that states with absolute dominion over the content of property can manipulate property rights for their own benefit and thereby violate widely held expectations as to what will be “protected as property.”113 These cases thus support the view that “while the Supreme Court has always suggested that state-law definitions of property control the scope of federal protection, it has rejected pure positivism when the government has manipulated regulations in order to eliminate the interest.”114
Along these lines, Professor Eric Claeys argues that Murr, Tyler, Cedar Point, and other cases show that the Court primarily departs from state-law definitions of property when “claimants are . . . gaming state law” or when “state legislators and regulators are . . . trying to convert state rights into dead letters.”115 Tyler’s general law approach “makes a considerable amount of sense normatively and practically,”116 argues Claeys, in part because it allows federal courts to step in “when state law does not seem to specify the relevant [property] rights reliably.”117
Given the suggestion that the general law method functions to protect property rights, those who favor increased property protections might celebrate Cedar Point and Tyler for their pro-property outcomes.118 This fact should come as no surprise. For those who fear that modern regulatory-takings jurisprudence protects too little property,119 Cedar Point was a victory over earlier cases like PruneYard Shopping Center v. Robins,120 which held, under the ad hoc Penn Central test, that the government did not owe private property owners compensation when it created an access right similar to the one in Cedar Point.121 Similarly, some viewed Minnesota’s practice in Tyler as “home equity theft,” such that deciding for the State would have “set a dangerous precedent.”122 Given the Court’s general law interventions against anti-property government actions in Cedar Point and Tyler, some observers might develop the impression that federal courts use general property law only to protect, rather than undermine, property rights.
III. Dangers of General Law Background Principles
In practice, however, the general law method seems unlikely to function as a one-way ratchet increasing property rights. This Part argues that the general law of property could come back to bite those who support expansive property protections. Specifically, property interests could be underprotected by general property law’s interaction with the background principles exception. To this end, this Part discusses two recent decisions of the U.S. Courts of Appeals that seized on Tyler’s general law approach to identify jurisdictionless background principles that foreclosed aggrieved property owners’ takings claims. These cases illustrate three features of jurisdictionless background principles that may systematically limit Takings Clause protections: First, general law tends to be overinclusive of background principles, as it necessitates a high level of generality. Second, placing the burden on plaintiffs to preempt background principles biases outcomes in the government’s favor. Third, general law approaches are incompatible with the requirement that background limitations inhere in a property owner’s title itself.
Both cases that this Part analyzes follow a pattern: In order to stop an emergency or make an arrest, the police destroy private property. In these scenarios, when (if ever) is the government liable for a taking? The Supreme Court has yet to opine on this question, despite a growing circuit split.123 The Fifth and Sixth Circuits recently weighed in, both denying the homeowners’ claims for compensation.124 In each case, the court relied on the general law approach of Tyler and Cedar Point to identify background principles that absolved the government of liability.
A. Baker v. City of McKinney — The “Necessity Exception”
In Baker v. City of McKinney,125 the Fifth Circuit held that a Texas homeowner whose home was “severe[ly] damage[d]” during law enforcement’s pursuit of an armed kidnapper could not recover under the Takings Clause.126 In denying the homeowner’s claim, the Fifth Circuit recognized “a necessity exception to the Takings Clause,” and held that no compensation is constitutionally required when it is “objectively necessary for officers to damage or destroy [private] property in an active emergency to prevent imminent harm to persons.”127
Instead of looking to Texas law to define the necessity exception, the court took license from Tyler to focus on jurisdictionless “[h]istory and precedent”128: “[T]he [Supreme] Court,” it observed, “has increasingly intimated that history and tradition, including historical precedents, are of central importance when determining the meaning of the Takings Clause.”129 This inquiry into “[h]istory and precedent” could “reach[] back to the Magna Carta.”130 The Fifth Circuit therefore recognized the necessity exception — and denied the homeowner’s claim — based on cases interpreting the common law of trespass in Pennsylvania, Iowa, Minnesota, Massachusetts, and New York.131
Baker cited only one Texas case, Steele v. City of Houston,132 for the proposition that, in Texas, “[u]ncompensated destruction of property has been occasionally justified by reason of war, riot, pestilence or other great public calamity.”133 But Steele on its face does not justify the expansive necessity principle that Baker established. Among other things, the Steele court explained that, according to a ninetheenth-century remedial statute, Texas municipalities could “destr[oy] a dwelling to prevent a public calamity,”134 such as a rapidly spreading fire,135 subject to several procedural requirements pertinent to “[t]he decision to destroy” the home.136 The statute gave the property owner the right to seek compensation after the fact before an administrative body.137
Although the facts in Steele involved “no similar enabling statute,”138 the Steele court drew upon this tradition to recognize a necessity principle in Texas law: The government, the court held, “may defend its actions by proof of a great public necessity.”139 But the Steele court ultimately did not opine on which, if any, instances of law enforcement destruction counted as “great public necessit[ies]” exempting the government from a duty to compensate.140 Instead, the court merely recognized that “war, riot, pestilence or other great public calamity” might serve as the basis for a necessity defense.141 Whether the “emergency” in Baker fit within this list of qualifying events is questionable.142
Most crucially, Steele “h[e]ld that the innocent third parties are entitled by the Constitution to compensation for their property.”143 In line with this holding, Texas state courts have interpreted Steele as standing for the principle that “the government’s duty to pay for taking property rights is not excused by labeling the taking as an exercise of police powers.”144 And later cases have acknowledged that it may be unclear “whether the Texas Supreme Court still recognizes the necessity doctrine as a defense to a takings claim.”145
The Baker court made no effort to test its rule’s compatibility with Steele or Texas state law generally. Instead, it plucked a quotation from Steele and refrained from any nuanced discussion of state-specific law.146 If the court had engaged with Texas law, however, it may have found that, at the very least, Baker’s case deserved a remand to the trial court for further proceedings on the necessity issue.147 It also could have certified the question to Texas courts for more guidance.
Baker thus wielded a background principle found in general law to limit property rights, potentially overriding a tradition in Texas limiting necessity to certain extreme circumstances. Considering that the necessity exception is not recognized by every state,148 though it is deeply rooted in the general common law,149 champions of property protections should be concerned that a general law approach could similarly abrogate other states’ attempts to protect private property. For example, in Pennsylvania Coal, “[Justice] Holmes’s determination that constitutionally protected property existed” relied upon Pennsylvania’s unique recognition of an innovative property interest called a “support estate.”150 Had the Pennsylvania Coal Court applied a general law conception of property — or had it found an applicable jurisdictionless background principle to undercut the support estate property right — it could have effectively overridden Pennsylvania’s choice to protect a new form of property.
B. Slaybaugh v. Rutherford County — “Search-and-Arrest” Privilege
A recent case in the Sixth Circuit, Slaybaugh v. Rutherford County,151 presented a fact pattern similar to Baker’s. The police executed an arrest warrant at a fugitive criminal’s address — his parents’ home — and in the process caused $70,000 worth of damage to the property.152 The civil authority refused to compensate the homeowners for the destruction, so they brought a claim under the Takings Clause.153
The Sixth Circuit, once again guided by Tyler, held that the Slaybaughs could not recover under the Takings Clause because the police action was covered by the “search-and-arrest privilege,” which exempts the state from liability for “police use of force when carrying out a lawful arrest.”154 Because of this privilege — one of the “background limitations” alluded to in Cedar Point155 — “the Slaybaughs had no right to exclude law enforcement’s privileged actions in the first place, [so] police . . . [could not] be said to have ‘taken’ any of their . . . property interests.”156
The Slaybaugh court, understanding background principles through the general law approach, reasoned that “[t]he Supreme Court instructs us to look to common law privileges on property rights” in adjudicating a takings claim.157 Acting on this guidance, the court based its holding on: (1) the search-and-arrest exception’s recognition in the Second Restatement of Torts;158 (2) early English common law precedents showing that “English courts repeatedly recognized that officers were not liable for certain property damage resulting from their lawful entries”;159 (3) “early state and federal court decisions . . . [that] held that a police officer who used force to carry out a search or arrest was not liable for any damage resulting from his lawful actions”;160 and (4) recent decisions of courts in Washington, New York, and Louisiana recognizing the search-and-arrest exception.161 But what happened to Tennessee state law?
Perhaps the Sixth Circuit did not address Tennessee law because Tennessee courts have taken no position on the search-and-arrest privilege. That Tennessee has not taken a position on the availability of the privilege, however, does not absolve the Sixth Circuit of its responsibility under Lucas to consult “State[] law.”162 Moreover, allowing federal courts to fill in state law’s silence with general law background principles could systematically underprotect property. Under the traditional state-law-only approach, a lack of controlling law would theoretically always result in the government losing its background principles defense — “no-law” cannot operate in the background to limit a plaintiff’s property right. But where courts can reach out to general law, they can find background limitations absolving the government of Takings Clause liability, even where state law would have required compensation.
In any case, regardless of what Tennessee law says or does not say on the matter, the Sixth Circuit’s decision conceivably overrides, for federal Takings Clause purposes, the property law of every state in its jurisdiction. Once jurisdictionless background principles are established (as a matter of federal law) by a federal appellate court, their precedential effect is much greater than that of their state-specific counterparts. For example, despite the fact that Cedar Point’s holding concerned the right to exclude in the regulatory context, the Court’s mere mention of the search-and-arrest privilege in dicta led to Slaybaugh’s disposition without any reference to state law.163 Even Baker — a non-binding, out-of-circuit precedent — appeared to have some persuasive force for the Sixth Circuit, perhaps because both courts were looking at the same source of law: the general law.164
C. Structural Considerations
Because the Court’s jurisdictionless approach to background principles was not cemented until Cedar Point, and because the general law method itself did not gain a strong foothold until Tyler, jurisdictionless background principles remain nascent in both theory and practice. In this context, Baker and Slaybaugh serve as valuable early examples of how general law background principles function, foreshadowing how the general law method — which some have mistakenly understood to be limited to protecting property in gamesmanship cases165 — can be used to deny takings claims.166 They do so not only as mere data points, but also as illustrations of a few features of the general law approach to background principles that could systematically undercut property protections.
1. Levels of Generality. — Baker and Slaybaugh illustrate that the general law approach, because it is fundamentally an exercise in abstraction, can result in more expansive background limitations on property rights (and therefore less property protection). A familiar theme in constitutional law is that as a principle’s level of generality increases, so too do the number of particular cases that it covers.167 In the background principles context, increased abstraction can mean more limitations on property interests and less Takings Clause protection. That general law background principles would be more abstract than state-specific ones is intuitive: When courts attempt to analyze the laws of jurisdictions in times and places near and far, a higher level of generality is needed to make those disparate laws all cognizable as part of a single, all-encompassing background principle. In Baker, for example, the necessity exception was distilled into a highly general rule that left the meaning of “emergency” and “necessity” — the principle’s two key terms — ambiguous.168 But these words’ content can vary from jurisdiction to jurisdiction.169
This generality problem is also systemic, in that it inheres in the sources central to Cedar Point’s general law approach. Although the Restatements — in which Cedar Point, Baker, and Slaybaugh found background principles — are useful sources for studying a given body of law’s general principles, they are written at a high level of abstraction and thus do not encompass any single jurisdiction’s nuanced common law.170 Meanwhile, a more particularized inquiry into state law requires reckoning with the nuts and bolts of state statutes and common law.171 If one concedes that increased abstraction leads to less property protection in the background-limitations context, then the courts’ use of generalized sources of law only supports the conclusion that a takings doctrine based on jurisdictionless background principles poses the endemic risk of underprotecting property.
The hallmark of many background principles opinions has been that they offer “little explanation” of how background principles actually apply to the facts at bar.172 Baker and Slaybaugh fit into this trend.173 And using general law to define background principles only worsens this problem. Reliance on general law sources further heightens the level of generality at which courts describe background principles and therefore “leave[s] . . . [courts] vulnerable to the criticism that they cherry-picked rules from various jurisdictions for instrumental purposes.”174
2. Burden on the Plaintiff. — Both Slaybaugh and Baker relied on a burden-shifting framework that “risks turning the right to private property into ‘a second-class right.’”175 In other individual rights contexts, the burden typically falls on the government to point to a historical analogue that justifies a regulation burdening constitutional rights.176 By contrast, both the Fifth and Sixth Circuits placed the burden on the respective plaintiffs to show a “historical or contemporary authority that involves facts close[] to those at bar and where the petitioner succeeded under the Takings Clause.”177 This burden’s origin is unclear. Perhaps it stems naturally from the fact that background principles are antecedent to the takings analysis, such that the burden falls on the plaintiff to establish that they had a property interest in the first place. More cynically, it could be the result of the courts’ squeamishness toward making definitive statements about history in these cases, so as to preserve “flexibility” for future cases,178 conceal operative normative judgments,179 or avoid getting the answer wrong.180 On this understanding, background rules would only appear categorical, but judges would exercise discretion in individual cases to determine whether a plaintiff’s showing of history is “close enough.” In any case, by burdening plaintiffs to disprove the applicability of background limitations — instead of requiring the government to prove a necessity defense — these early general law cases demonstrate a bias that undercuts property protections.
3. Lack of Notice. — General law background limitations on property rights conflict with the fundamental tenet that background principles “inhere in the title itself.”181 When Lucas established the background principles exception, it did so on the basis that, if South Carolina common law restricted Lucas’s property rights, Lucas would probably have had “actual or constructive notice of” such a background restriction.182 Rooting background principles in state-specific law is central to these restrictions’ core intuition that local property owners know about them, whether through “cultural consensus” or “fair notice.”183 But neither of these rationales can justify jurisdictionless background principles, particularly where they conflict with the law of the state in question.184
In Baker and Slaybaugh, the courts denied innocent homeowners’ claims when the government destroyed their homes. In doing so, the Baker court recognized this outcome’s manifest injustice, disserving ‘‘[t]he Fifth Amendment’s guarantee . . . [that prevents the] 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.”185 It only increases the sense of injustice in Baker and Slaybaugh that the homeowners were denied compensation based on sources of law that they could not have known about, like customs recognized in feudal England and New York. And because the general law is not bound to any jurisdiction, these cases will set a nationwide precedent for uncompensated property destruction, leaving the foundational requirement that a background principle “inhere in the title itself” uninterrogated.186
Conclusion
Background principles, like constitutional property itself, have long been rooted in state-specific law. Recently, however, the Supreme Court’s turn to jurisdictionless property law has collided with its background principles jurisprudence. The result is a model of background principles based on an unbounded source of general property law that spans centuries and continents. These ascendant general law background principles threaten to systematically undermine property rights while disserving the fundamental premise that those rights derive from social expectations. As the constitutional definition of property continues to evolve, courts and scholars should recognize the potential for general law background principles to dilute property protections.