Metaphysical Right and Practical Obligations

[...]this story is not just for property scholars; it holds valuable lessons for scholars and jurists who are interested in other aspects of American constitutionalism as well. In the Court's landmark decision in Lucas v. South Carolina Coastal Council,5 the Court reset the baseline for the government's regulatory takings liability in certain cases, from the regulatory context to what the Court called the "background principles" of tort and property law.58 Justice Scalia's opinion for the Court explained that a state cannot avoid takings liability by simply asserting that the prohibited use is contrary to public interest or law.59 Instead, the state must show that the prohibited use was inherently excluded from the owner's title by the owner's own common-law duties.60 A regulation is not a taking if it merely codifies the judgment that a neighbor or local government could have obtained in a civil action to abate a nuisance or to obtain a remedy for some other common-law wrong.61 Over the course of several years the Court flip-flopped back and forth between Brennan's pragmatic reductionism and Scalia's deference to the common law of rights and wrongs. In none of those cases did the Court rule that the owner enjoys absolute rights to exclude, use, or dispose without limitation.11 But in each case the Court insisted that the limitations of property rights laid down in law cannot be moved by fiat whenever a state or federal actor decides that those limitations should be drawn more restrictively. 72 In the Arkansas case, for example, the United States argued that it has the power to choose whose land to flood when it manages flood control, and that it must not be subjected to expropriation liability for exercising that power.13 This argument left Justice Sotomayor "totally confused" and prompted Justice Scalia to ask whether the government was attempting to "overrule the Takings Clause. The priority of property rights is rooted in the common law of wrongs. Because we have pre-political duties, we have pre-political liberties.