Several provisions of the Bill of Rights seem to rely on common law concepts to define the rights they protect, such as the Fourth Amendment’s protection of “persons, houses, papers, and effects” and the Fifth Amendment’s protection of “property.” A few years ago, I wrote (with James Stern) an article arguing that the Fourth Amendment should be understood to rely on positive law—the law of the specific jurisdiction in which the search or seizure took place—to bound what counts as a search or seizure. (Orin vehemently disagrees.) But we noted one important limit to the use of positive law—one should look to the law that would bind ordinary private parties, not the law that specifically binds the government. After all, if the government tries to give itself a special legal privilege to commit batteries and trespasses, that is exactly what the Fourth Amendment limits.
Earlier this year, Danielle D’Onfro and Dan Epps wrote an interesting article that the Fourth Amendment should be understood not in light of a specific state’s law but in light of general law—the unwritten, transjurisdictional law that was ubiquitous in federal courts during the era of Swift v. Tyson, before the revolutionary decision in Erie Railroad v. Tompkins. And while those pieces are about the Fourth Amendment specifically, the same kind of debate could translate to the Fifth Amendment’s provisions as well.
In light of that background, I was especially interested in the Court’s decision last week in Tyler v. Hennepin County. As readers surely know from Ilya’s many posts on it, Tyler is a takings case, where Minnesota law defines away a homeowner’s property rights in a way that would make it easy for the state to circumvent the just-compensation requirement. Thus, Chief Justice Roberts explains for the Court, it cannot rely purely on state law:
The Takings Clause does not itself define property. Phillips v. Washington Legal Foundation, 524 U. S. 156, 164 (1998). For that, the Court draws on “existing rules or understandings” about property rights. Ibid. (internal quotation marks omitted). State law is one important source. Ibid.; see also Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 560 U. S. 702, 707 (2010). But state law cannot be the only source. Otherwise, a State could “sidestep the Takings Clause by disavowing traditional property interests” in assets it wishes to appropriate. Phillips, 524 U. S., at 167; see also Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 164 (1980); Hall v. Meisner, 51 F. 4th 185, 190 (CA6 2022) (Kethledge, J., for the Court) (“[T]he Takings Clause would be a dead letter if a state could simply exclude from its definition of property any interest that the state wished to take.”). So we also look to “traditional property law principles,” plus historical practice and this Court’s precedents. Phillips, 524 U. S., at 165–168; see, e.g., United States v. Causby, 328 U. S. 256, 260–267 (1946); Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1001–1004 (1984).
Now this list of additional sources has been criticized as somewhat indeterminate. But I think what the Court is describing is basically the pre-Erie general law approach. General principles and historical practice make up the more general principles of the common law, not necessarily beholden to any one jurisdiction’s local law. Because we live in a post-Erie world, it no longer seems natural to use the label “general law,” but it is general law by another name.
Interestingly, in a later part of the opinion that Court invokes a slightly different argument– that the ordinary state property law that applies to non-government transactions would also recognized a property right here:
Finally, Minnesota law itself recognizes that in other contexts a property owner is entitled to the surplus in excess of her debt. Under state law, a private creditor may enforce a judgment against a debtor by selling her real property, but “[n]o more shall be sold than is sufficient to satisfy” the debt, and the creditor may receive only “so much [of the proceeds] as will satisfy” the debt. Minn. Stat. §§550.20, 550.08 (2022). Likewise, if a bank forecloses on a home because the homeowner fails to pay the mortgage, the homeowner is entitled to the surplus from the sale. §580.10.
In collecting all other taxes, Minnesota protects the taxpayer’s right to surplus. If a taxpayer falls behind on her income tax and the State seizes and sells her property, “[a]ny surplus proceeds . . . shall . . . be credited or refunded” to the owner. §§270C.7101, 270C.7108, subd. 2. So too if a taxpayer does not pay taxes on her personal property, like a car. §277.21, subd. 13. Until 1935, Minnesota followed the same rule for the sale of real property. The State could sell only the “least quantity” of land sufficient to satisfy the debt, 1859 Minn. Laws p. 58, §23, and “any surplus realized from the sale must revert to the owner,” Farnham, 32 Minn., at 11, 19 N. W., at 85.
The State now makes an exception only for itself, and only for taxes on real property. But “property rights cannot be so easily manipulated.” Cedar Point Nursery v. Hassid, 594 U. S. ___, ___ (2021) (slip op., at 13) (internal quotation marks omitted). Minnesota may not extinguish a property interest that it recognizes everywhere else to avoid paying just compensation when it is the one doing the taking. Phillips, 524 U. S., at 167.
This, in essence, is the positive-law/legality approach, in which we judge the government’s actions by the same legal baselines that apply to all other parties.
Thus, without quite saying so, the Court seems to have adopted insights from both the general law and positive law models of constitutional property, using both to explain why state law usually—but not completely—describes the baseline for one’s legal entitlements.
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