This week, I've blogged on a forthcoming article about the Supreme Court case Tyler v. Hennepin County, Minnesota. As I showed on Monday, in Tyler the U.S. Supreme Court held that surplus equity constitutes "private property" sufficient to support claims under the Takings Clause. As I showed on Tuesday and Wednesday, the Court reached that conclusion (primarily) by figuring out what the general law in England and the American states held at the Founding on surplus equity but (secondarily) also by checking how Minnesota (the defendant in Tyler) treated surplus equity when it wasn't foreclosing. Yesterday, I argued that this strategy makes practical sense in context. For originalists, the Tyler strategy provides a way to work out what "private property" means and covers when the historical record doesn't make explicitly clear whether a particular legal entitlement was understood to be property. For non-originalists, the Tyler approach provides a way for federal courts to steer between two dangers. The approach avoids overaggressiveness, in second-guessing state property law, and passivity, when states use their powers to define property to expropriate it.
Today, I'll devote this post to a "reader mailbag" day. Here's one reaction I've gotten: How far might federal courts go in relying on general law? To make the question more pointed, consider a hypothetical. Assume that English and American practice pre-1790 ruled out the possibility that surplus equity was property, but that American state courts and legislatures gradually came to regard it as property later. The hypothetical differs from what happened in Tyler. In Tyler the Court focused on general law sources before or only shortly after the ratification of the Fifth Amendment, and there was no tension between post-ratification general law and English and pre-ratification practice. But the hypothetical raises some important questions, about how much one can rely on general law.
I have two different answers depending on what you think is the right approach to constitutional interpretation. If you are not an originalist, in situations like my hypothetical, courts could and probably should follow general law. The general law provides a baseline. The baseline stands separate from judges' own views about whether a particular entitlement should or shouldn't be property (or, whether a state has good grounds to regulate it). And, the baseline allows for comparison of a state's law against the practices in other states.
