Justice Scalia chided Justice Kennedy in Stop the Beach for using the due process clause to deal with eminent domain, because the 5th Amendment provides a textual home for taking issues. Scalia wrote:

The first problem with using Substantive Due Process todo the work of the Takings Clause is that we have held it cannot be done. “Where a particular Amendment ‘pro-vides an explicit textual source of constitutional protec-tion’ against a particular sort of government behavior,‘that Amendment, not the more generalized notion of“substantive due process,” must be the guide for analyzing these claims.’” Albright v. Oliver, 510 U. S. 266, 273 (1994) (four-Justice plurality opinion) (quoting Graham v. Connor, 490 U. S. 386, 395 (1989)); see also 510 U. S., at 281 (KENNEDY, J., concurring in judgment) (“I agree with the plurality that an allegation of arrest without probable cause must be analyzed under the Fourth Amendmentwithout reference to more general considerations of due process”).

I addressed a similar issue in my article Equal Protection from Eminent Domain. Protecting the Home of Olech’s Class of One, 56 Loyola L. Rev. 697 (2010) (SSRN), where I propose using the equal protection clause as a tool to challenge takings.

Before continuing, this Article will address concerns about using the Equal Protection Clause to challenge takings when textually, the Fifth Amendment Takings Clause, as incorporated through the Due Process Clause of the Fourteenth Amendment, supplies a remedy.88 The Supreme Court has addressed this issue in a related context. In Albright v. Oliver, the defendant challenged a government search on substantive due process grounds, when the Fourth Amendment provided the appropriate remedy.89 The Supreme Court rejected the defendant’s strategy, holding that “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing such a claim.”90In other words, a defendant cannot avail himself of substantive due process when the Constitution textually provides for protection, in the case of Albright, the Fourth Amendment. While equal protection claims and substantive due process claims are not identical, their similarity emanates related concerns of unbounded judicially created rights.

At first glance, this admonition would seem to counsel against a litigant utilizing the Equal Protection Clause to challenge eminent domain takings, because the Fifth Amendment’s Takings Clause, as incorporated through the Fourteenth Amendment, would ostensibly qualify as an “explicit textual source of the constitutional protection.” Why challenge a taking under the Equal Protection Clause when the Takings Clause does the trick? Resolving this tension is essential to validly positing Olech as a constitutional and pragmatic approach to challenging eminent domain abuse.

However, upon closer scrutiny of what the Olech claim seeks to accomplish, this situation is distinguishable. The Takings Clause provides “nor shall private property be taken for public use without just compensation.”91 In the lexicon of Oliver, the plain text of the Amendment suggests three primary constitutional inquiries: (1) whether there is a taking; (2) whether the taking is for public use; and (3) whether the government provides just compensation.92 According to Oliver, these are the “explicit textual source[s] of constitutional protection against a particular sort of government behavior.”93 Thus, if one were to use the Equal Protection Clause to challenge any of these three protections, Oliver would control. For example, if a litigant contended that a taking did not constitute a public use under the Equal Protection Clause, the Court should disregard such an extracurricular appeal to this extraneous constitutional clause. Similarly, if a litigant argued that the compensation was not just, a claim under the Equal Protection Clause should be dismissed under Oliver.

In contrast, an Olech claim, based on the Equal Protection Clause, guards against a totally different evil. The Olech claim protects a class of one that is intentionally and irrationally treated differently from other similarly situated homeowners, and the governmental action results in the taking of his property. The three threshold questions of the Fifth Amendment are not implicated. First, this claim does not query whether a taking exists. Second, the definition of a public use is irrelevant. Third, whether just compensation is provided is of no matter. The Olech claim can only find refuge in the Equal Protection Clause. The Fifth Amendment provides no textual anchor for challenging this species of governmental

action. Thus, Oliver does not control, and an appeal to the Equal Protection Clause is an appropriate means in this limited context to challenge eminent domain takings.