Pennsylvania Coal Co. v. Mahon: Brandeis, in dissent

Previously, I wrote about the majority opinion in Mahon, authored by Justice Oliver Wendell Holmes, Jr. In short, Justice Holmes wrote that private property could be regulated to a “certain extent”, but that if that regulation went “too far” it would constitute a taking. Subsequent history has taught us that the Supreme Court has read this to mean that all value has to be taken through regulation in order for a taking to exist. We’ll revisit this point when we move into later twentieth century regulatory takings cases. Today, though, I will discuss Justice Brandeis’s response to Justice Holmes’s opinion.

Brandeis was the lone dissenter in this case. His decision has two elements that I find particularly interesting: first, instead of discussing specific “estates” in the land (an “estate” meaning, a legal interest), Brandeis was interested in the way owners “use” the land and how those uses could be regulated; and second, he was interested in the way the state’s police powers should apply in the case. The two go hand-in-hand in his view.

Use of land, he points out, is something the government (in this case, the Commonwealth of Pennsylvania) has always been able to regulate. Use by an owner is never absolute. That is to say, because you own land does not mean you can use it however you want. For example, an owner may not create a public nuisance with his land. An example of this would be someone placing a ton of scrap metal on their land or dumping chemicals on it so that the water table is poisoned, and all the land adjacent to their tract was devalued or damaged because of their activities. Brandeis also notes that “uses, once harmless, may, owing to changed conditions, seriously threaten the public welfare.” I think contemporary examples of this would include believing that a chemical was harmless and then learning that it is linked to cancer or some other disease. Brandeis argues, in essence, that when new information (including new science) comes to light the government can step in for the good of the public and create regulations addressing the problems.

Now, keep in mind that this is a case about a state level statute, so Justice Brandeis’s remarks are focused on the state police power. His argument is that if the state is legitimately exercising its powers to legislate on behalf of the health, safety and morals of its citizen (which are powers given the states in the federal constitution), then they do so without having to pay compensation. The only time they would be required to compensate is if the state were to exercise their power in such an arbitrary manner as to violate the 14th Amendment’s due process clause and, through it, the Takings Clause of the Fifth Amendment. Brandeis explains that all restrictions on the use of property ultimately deprive an owner of something he or she may have enjoyed before the restriction was written. He writes,

“deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment of the State of rights in property without making compensation. But restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking. The restriction here in question is merely the prohibition of a noxious use…”

Such a restriction must have the purpose of protecting the public for it to be a legitimate exercise of police powers, wrote Justice Brandeis. This point is important because the statute that was in question in Mahon had included provisions that restricted undermining in areas used by the public even though this case involved private owners. Brandeis believed that just became the Mahons were private owners, the statute should apply to their land just as it did to public lands.

Justice Holmes, in his majority opinion, seems to have mostly ignored the portions of the statutes that dealt with public areas, paying more attention to the fact that in this specific case the land was privately held and not used by the public. Moreover, the Mahons had been given notice by Pennsylvania Coal to expect their land to be undermined. Holmes believed that, because of the terms of the deed, notice was all that was necessary for the company to do if it wanted to mine the coal. If more needed to occur, in Holmes’s view the state should have exercise eminent domain and acquired the land rather than regulating it in such a way that caused the diminution of its value.

Brandeis, however, argued that “…a restriction imposed through exercise of the police power [is not] inappropriate as a means, merely because the same end might be affected through exercise of the power of eminent domain, or otherwise at public expense.” In his view, if this were the case, every restriction placed on property would be unconstitutional. Later in the opinion, he points out that Holmes’s theory that notice by the coal company was all that was required to ensure the safety of the Mahons (or anyone else living or working not the surface of land being undermined) was problematic. Brandeis believed that the state legislature, which possessed local knowledge concerning local conditions, had determined that such notice was not adequate to the protect the public safety. It was because local decision makers and tribunals would possess local knowledge that the police powers reside in the states, he said. Had they believed that notice by the coal company was enough, there would have been no need for the statute at all and the state supreme court would not have decided in favor of the Mahons.

On the issue of diminution of value, Justice Brandeis also disagreed with Justice Holmes. He explained that “values are relative”.  Relative to what? To whatever you’re comparing it to, he said. Brandeis argued that Justice Holmes had compared the value of what was lost (i.e., enough coal left in place to keep the surface from collapsing) by the Company against the wrong thing: “If we are to consider the value of the coal kept in place by the restriction, we should compare it with the value of all the parts of the land. That is, with the value not of the coal alone, but with the value of the whole property. The rights of an owner as against the public are not increased by dividing the interests in his property into surface and subsoil. The sum of the rights in the parts cannot be greater than the rights in the whole.” Here he points out that state governments were already regulating what occurred above ground to protect adjacent property owners. For example, buildings could not be higher than a certain number of stories in some cities so that those in lower buildings still had access to sunlight and fresh air. Brandeis, rather pointedly inquires why, given the constitutionality of such restrictions, should rights underground bar the State’s power to set regulations for public safety purposes?

In many ways, the disagreement between these two justices had to do with whether they trusted states to exercise their police power. For Brandeis, regulations for the health, safety and morality of the citizens were not only acceptable, but required in order for a society to evolve and function well. In 1922, Holmes’s skepticism of state regulation predominated his thinking. His view that eminent domain was the appropriate vehicle for accomplishing the goals of the state meant that Pennsylvania would have to condemn all the land that the mining companies wanted to undermine in order to accomplish the protection of individuals living on the surface. Even if the state could afford to do so, Holmes’s intention was to make the decision to end land subsidence a purely economic calculation rather than an issue of morality and safety.

Despite this disagreement, these two justices would, eventually, be united in many of their views, joining one another in dissent after dissent when their colleagues struck down federal level regulations in the 1930s. That said, in 1922, their arguments in Mahon — and the confusing tension in Holmes’s majority opinion — was indicative of the changing perspectives during the early part of the the century concerning police powers and regulation that would eventually lead to the 1930s battles between the US Supreme Court and President Roosevelt concerning New Deal legislation.

Today, this case may well be at the heart of the tension in regulatory takings cases, or at least its indicative of how that tension developed. The questions regulatory cases pose again and again include what land use regulations can government create without compensation, when must they compensate, and when should they use eminent domain to accomplish their goals? The answers the Court gives have never been fully satisfactory to anyone, but that may partly be due to the very different regulatory situations in which takings cases occur and the way a case-by-case analysis can make consistency in the law (and we like law to be consistent internally) all but impossible. In that regard, the most important insight in this case may well have been Justice Brandeis’s observation that regulation depends upon context and what was once viewed as a safe use may become unsafe (and therefore open to regulation), depending upon changing conditions. The value of the land, in other words, may not be the only thing that is relative.

Reading Pennsylvania Coal Company v. Mahon reminded me that building skyscrapers was not only a technologically awe-inspiring when they were first constructed, but also one that had ramifications for owners of property adjacent to the skyscrapers. One of these days, I will write a post about those cases and the connection between regulatory takings and public nuisance law.

Property in the Constitution 3

I recently wrote about private property in colonial America. Today, I’ll pick up where I left off, with a discussion of protections for property rights codified in the Constitution, and later in the Bill of Rights. This will be the final broad, generalized background post, before we begin marching through Supreme Court cases, starting next time with Barron v. Baltimore.

The Constitution

Reflecting their Revolutionary ideology – which included strands of Enlightenment liberalism and classical republicanism – as well as lessons learned from the failures (real and perceived) of the Articles of Confederation, the men at the Philadelphia Convention were convinced that strong protections of property rights were crucial to the success and stability of the new nation. Thus, the U.S. Constitution provides five explicit protections for property rights:

  1. Article III, Section 3 states, “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of the Blood, or Forfeiture except during the Life of the Person attainted.” Relevant to our interest in property, this clause means that Congress can punish treason by confiscating a convicted traitor’s property – but they are forbidden from doing so after the traitor’s death. Thus, if a traitor is executed, Congress could not later take his property from his heirs, and so forth.
  1. Two clauses (later amended) denied Congress the power to levy direct taxes, unless apportioned among the states according to population (Article I, Section 2, clause 3; and Article I, Section 9, clause 4, which states “No Captitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.”). These clauses denied Congress the power to levy “direct taxes” – a broad and somewhat ambiguous category of taxes that include property taxes and taxes on income. The Framers recognized that taxes on property – including income – could be politically abused. They particularly feared sectional rivalries, where, for example, Northern industrial interests might use taxation to thwart Western development, or to tax slaveholding, etc. They also recognized that it would be possible for class interests to abuse one another with direct taxes. The Supreme Court declared America’s first attempt at an income tax unconstitutional on the basis of these clauses in the 1895 case Pollock v. Farmers’ Loan & Trust Co. (157 U.S. 673). This case was overturned, and the above clauses of the Constitution superseded, by the Sixteenth Amendment in 1913.
  1. Article I, Section 8 provides that Congress has the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Thus, the Constitution gives Congress the power to award copyrights and patents, in recognition of the emerging importance of intellectual property. It was thought that ensuring protecting exclusive use of authors and inventors would increase the incentive for individuals to innovate.
  1. Article I, Section 10 denies the several states any authority to impair “the Obligations of Contracts.” This clause was intended to keep politics from interfering with private agreements (such as mortgages). Events in the months leading up to the Constitutional Convention – such as Shays’ Rebellion – convinced the Framers that state intervention in contracts (such as debtor relief laws) could cause major economic turmoil. This clause would be among the most important in the Constitution for the nation’s first one-hundred years, and was subject to much litigation and construction in the early republic. Its importance continues today, but has been significantly diminished since the Supreme Court upheld a temporary freeze on foreclosures in the case Home Building & Loan v. Blaisdell  during the Great Depression.
  1. Article I, Section 10 also denies the power to “make any Thing but gold and silver Coin a Tender in Payment of Debts.” This clause was designed to prevent states from issuing inflationary paper money (“fiat currency” in economic terms) in order to relieve debts. Similar to the previous clause, this was designed to foster a stable economy.

Another set of provisions touch on property, but less directly than in the clauses discussed above. One of these are the general bans on bills of attainder (Article I, Section 9; Article I, Section 10). A bill of attainder is a law that declares a person or group guilty of some crime without the benefit of a trial. Additionally, Congress is given the power to establish “uniform Laws on the Subject of Bankruptcies throughout the United States” (Article I, Section 8). Further, Article I, Section 9 denies Congress the power to lay duties on exports (“No Tax or Duty shall be laid on Articles exported from any State”) or to give preferential treatment to any port (“No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another”). These clearly fall within a broad category of Congressional powers to regulate the economy (and exemptions to that power) – and thus complement Congress’ Article I, Section 8 power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The larger purpose of all of these clauses is to create a central government powerful enough to foster a strong economy, but not so powerful as to threaten the liberty (or property) of its citizens.

Note that the original Constitution also contained three protections for property in slaves. Article I, Section 2 states that for the purposes of apportionment in Congress, slaves shall be counted as “three fifths” of persons, thus inflating the representation of slave-holders in Congress. Article I, Section 9 denies Congress the authority to ban the importation of slaves before 1808. Finally, Article IV, Section 2, holds that “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”

The Fifth Amendment

During the debates over the Constitution’s ratification in the several states, many parties, including the so-called “Anti-Federalists” (those who were opposed to the Constitution’s ratification, generally because they felt it created too strong a national government) demanded the inclusion of a Bill of Rights. The Constitution’s supporters, called Federalists, agreed to propose articles for a bill of rights pursuant to the Article V process during the First Congress. Congress passed twelve amendments, and sent them to the states for ratification. The states approved ten of these, which came to be known as the Bill of Rights. The Bill of Rights contains two more provisions explicitly protecting property, both in the Fifth Amendment:

  1. The Fifth Amendment states, “nor shall private property be taken for public use, without just compensation.” True to Constitutional form, this clause marks out another limit on government power. It states that no property can be taken by the government, except for public use (that is, it cannot take property for private use). Further, it states that when government must take property for public use, it must compensate the owner for the taken property.
  1. The Fifth Amendment states, “No person shall… be deprived of life, liberty, or property, without due process of law.” This “Due Process Clause” has been hugely important in American history. It states that no person can be deprived of his property except after established procedures. Until the 1910s or so, it was generally believed that this clause also placed a substantive limitation on Congress’ ability to regulate economic rights (see Gillman 1993).

Additionally, there are important connections between the explicit protections in the Fifth Amendment with portions of the Fourth, especially its limitations on seizures of peoples’ “houses” and “effects.” In both the Fourth and Fifth Amendments, civil juries of ordinary citizens would be central to ensuring that government (at this time, the national government) would not be abuse the people, as it would be juries that would decide whether searches were “reasonable,” how much compensation justice required, and whether punitive damages should be awarded in light of outrageous governmental conduct (Amar 1998, 80). Further, several scholars have noted that the Takings Clause builds on the Third Amendments limitations of the military, arguing that the Takings Clause was motivated at least in part by a desire to prevent impressment by the military without governmental approval (recall the above mentioned practice of impressing horses and other property into service during the Revolution).

What I’m hoping you’ll take away from all this discussion can be summarized as follows:

  1. Americans have long history of protecting a wide variety of property rights – but those rights have always been understood to be limited.
  2. The Constitution and Bill of Rights contains a number of explicit protections or property rights.
  3. Protection against uncompensated appropriation of property is only one of the many property protections in the Constitution (but this one protection will be the focus of this series of posts).

Moving forward we’ll be focusing entirely on that portion of the Fifth Amendment that states “nor shall private property be taken for public use, without just compensation.” This clause seems straightforward, but raises a number of questions. For starters, it clearly implies that the government may take property for public use, but it does not tell us what qualifies as a public use. Thus we must ask: what qualifies as a “public use”? who gets to decide what a qualifies as a public use? how much compensation is “just” – and who gets to decide that question? These are the sorts of questions that occupy the Supreme Court’s attention when it adjudicates claims in physical takings cases. [By physical takings, I mean takings in which the government actually takes title to property; this distinguishes from “regulatory” and “judicial” takings, in which regulations, etc., deprive owners of the value of their property.] And, as a result, these are the sorts of questions we’ll be exploring in future posts in this series.

Suggested Reading:

Amar, Akhil Reed. 1998. The Bill of Rights. Yale University Press.

Ely, James W. 2008. The Guardian of Every Other Right, 3rd ed. Oxford University Press.

Gillman, Howard. 1993. The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence. Duke University Press.

Gillman, Howard, Mark A. Graber, and Keith E. Whittington. 2013. American Constitutionalism, Volume II: Rights and Liberties. Oxford University Press.

Horowitz, Morton J. 1977. The Transformation of American Law 1780-1860. Harvard University Press.

Ketcham, Ralph. 1993. Framed for Posterity: The Enduring Philosophy of the Constitution. University Press of Kansas.

Treanor, William Michael. 1985. “The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment.” Yale Law Journal 94: 694-716.