The Self-Executing Nature of the Takings Clause is Nothing New

 

 

What follows is an extract from Blackman and Tillman’s Response to Baude & Paulsen

 

In our view, Griffin invoked Section 3 in an offensive posture, that is, as a cause of action in support of affirmative relief, but he lacked a federal statute authorizing his doing so. We do not put this view forward as an after-the-fact invention or ahistorical gimmick which merely accommodates otherwise inconsistent or difficult to explain prior case law. Our position is that this is what Chase was saying in 1869, how he was understood, and how courts and commentators understood the Fourteenth Amendment until . . . until about 2020, and more recently, by Baude and Paulsen. For example, in Cale v. Covington (1978), the U.S. Court of Appeals for the Fourth Circuit, held

 

It is true that in [T]he Civil Rights Cases [(1883)] the [Supreme] Court referred to the Fourteenth Amendment as self-executing, [and] when discussing the Fifteenth, but it is also true that earlier in the opinion, discussing s 1 of the Fourteenth Amendment, the [Supreme] [C]ourt stated: “in order that the national will, thus declared, may not be a mere Brutum fulmen [a mere warning without effect], the last section of the amendment invests Congress with power to enforce it by appropriate legislation.” The Civil Rights Cases did not overrule Ex parte Virginia, and any apparent inconsistency between the two just quoted statements in [T]he Civil Rights Cases may be resolved, we think, by reference to the protection the Fourteenth Amendment provided of its own force as a shield under the doctrine of judicial review. See the dissent of Mr. Justice Harlan in the Civil Rights Cases quoted infra. See also the Slaughter-House Cases, 16 Wall. at 81, where the Court, referring to the equal protection clause of the Fourteenth Amendment, had stated that when it is a State dealt with and not alone the validity of a State law, the matter should be left until Congress should has exercised its power or some case of State oppression by denial of equal justice in its courts claims a decision at the hands of the Supreme Court. Another early opinion, not by the Supreme Court but by Chief Justice Chase sitting as a Circuit Justice, is Griffin’s Case, 11 Fed. Cases 7 (C.C.D. Va. 1869), which held that the third section of the Fourteenth Amendment, concerning disqualifications to hold office, was not self-executing absent congressional action . . . With this understanding in mind, we believe that the Congress and Supreme Court of the time were in agreement that affirmative relief under the amendment should come from Congress.

 

And what authority did the Fourth Circuit look to and cite: Griffin’s Case. Former Fourth Circuit Judge Michael Luttig, who recently wrote that Griffin’s Case was “poorly reasoned,” seems unaware of his former court’s precedents.

We don’t doubt that there are some exceptions to the sword-and-shield framework which we have put forward. Bivens is one exception; Takings Clause cases and inverse condemnation proceedings, another. Contracts Clause cases, which also turn on government abridgment of a form of property, may be another. We suspect other exceptions may exist where concrete property rights are in dispute under Article III’s equity prong, as opposed to the law prong. There may be other exceptions too. But they are individually and collectively exceptions—often of recent judicial creation. The historically dominant view is what was put forward by Chase in Griffin’s Case. Our view is that this sword-and-shield framework undermines Baude and Paulsen’s core position: they believe that the Fourteenth Amendment is self-executing. If Baude and Paulsen believe all constitutional provisions are self-executing in both senses—as a sword and shield, we think they are in error. If they believe that Section 3 is distinguishable from other constitutional provisions, and yet Section 3 is self-executing in both senses, as a sword and shield, even if other constitutional provisions are not, then we fail to see how they distinguish Section 3 from other constitutional provisions.

 

Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28(2) Tex. Rev. L. & Pol. 350, 483–84 (forth. 2024) (footnotes omitted) (underscore added) (bold and italics in the original) (posted on: Sept. 19, 2023), <https://ssrn.com/abstract=4568771>.

Seth Barrett Tillman, ‘The Self-Executing Nature of the Takings Clause is Nothing New,’ New Reform Club (Jan. 17, 2024, 7:39 AM), <https://reformclub.blogspot.com/2024/01/the-self-executing-nature-of-takings.html>;