Note: This is my first blog post in a series on “Lockean takings.”

In his 1985 book Takings, Richard A. Epstein’s landmark work on takings law (the cover of which is pictured below), Epstein (1985, p. 31) identifies four fundamental questions that courts and scholars must address when studying or interpreting the Takings Clause:

1. Is there a taking of private property?
2. Is there any justification for taking that private property?
3. Is the taking a public use?
4. Is there any compensation for the property so taken?

Yet, absent from Epstein’s legal laundry list is this key question, What forms of private property are protected by the Takings Clause? Specifically, why don’t takings of one’s labor count as a “taking” under the Constitution?

Under traditional eminent domain law, a “taking” occurs when the government seizes private property for public use. Today, however, Supreme Court caselaw recognizes two types of takings: (i) physical seizures of property rights, and (ii) “functional” or constructive ones or so-called “regulatory takings.” On the one hand, any physical interference with private property rights, no matter how minimal, constitutes a taking.[1] On the other hand, a regulatory taking occurs only when the government restricts one’s property rights to such an extent that the governmental action becomes the functional equivalent of a physical seizure.[2]

But there is a legal anomaly in the Supreme Court’s takings jurisprudence and in Epstein’s excellent book. The anomaly is this: why aren’t property rights in one’s labor protected under the Takings Clause? Historically speaking, the High Court has taken an expansive view of property under the Takings Clause. Protected property interests include not only property rights in land, including easements and servitudes,[3] but also rights to personal property[4] as well as such intangible interests as patent rights,[5] contract rights,[6] and trade secrets.[7]

Moreover, this anomaly is all the more striking in light of the Supreme Court’s expansive interpretation of the public use requirement in Kelo v. City of New London, 545 U.S. 469 (2005). Simply put, if a private development project qualifies as a “public use” within the meaning of the takings clause (Kelo), and if protected property interests include such intangibles as patents (James), contract rights (Lynch), and trade secrets (Monsanto), then why doesn’t eminent domain apply to public “takings” of property rights in one’s labor?

Now that I have identified this anomaly in the caselaw, in my next post I will survey some of the emergency lockdown orders that were enacted in the United States in 2020 in response to the novel coronavirus pandemic. Later, I will explain why these orders are a “taking” of labor.

[1] See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

[2] See, e.g., Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).

[3] See, e.g., United States v. Welch, 217 U.S. 333 (1910).

[4] See, e.g., Horne v. Department of Agriculture, 135 S. Ct. 2419 (2015).

[5] See, e.g., James v. Campbell, 104 U.S. 356, 358 (1882).

[6] See, e.g., Lynch v. United States, 292 U.S. 571, 579 (1934)

[7] See, e.g., Ruckelhaus v. Monsanto Co., 467 U.S. 986 (1984).