Reply #3: More bad news....he's an advocate of expanding definiton of 'takings'

[Viking12]

Clearly a judicial activist.....

In the first article, Roberts offered his view of the Takings Clause, which requires that the government give “just compensation” for takings of “private property.” Roberts claimed that courts trying to ascertain its meaning, “have not been significantly aided by the
words of the clause, which are incapable of being given simple, clear-cut meaning… Indeed, the very phrase ‘just compensation’ suggests that the language of the clause must be informed by changing norms of justice." After rejecting on various grounds several interpretations of the clause traditionally used by courts – i.e. physical intrusion onto an owner’s property as anachronistic in a largely non-agrarian society, “noxious use” as too value-laden, and Justice Holmes’ 1922 “diminution of value” test as too vague, Roberts argued for a “constrained” model based on a utility-based test proposed by Professor Frank Michelman. Under that model, parties made unwhole or “insecure” by regulation should be compensated accordingly.

“The Takings Clause,” Developments in the Law – Zoning, 91 Harvard Law Review 1462, 1464 (1978).

In his second article, Roberts took on the Contract Clause, which provides that, “No stateshall… pass any… law impairing the obligation of contracts.” Roberts argued that this clause should be interpreted to protect corporations from legislation that might increase
their obligations to their workers, such as pension protection, and not, as Justice Brennan had asserted, to protect individuals from decisions by states that nullified rights by reneging on contracts. Roberts criticized Justice Brennan’s plain language interpretation
of the Contract Clause, arguing instead that, “Constitutional protections, however, should not depend merely on a strict construction that may allow ‘technicalities of form to dictate consequences of substance.’”42 Here, as in his Takings Clause article, Roberts seems unafraid to reject a “strict construction” approach to constitutional interpretation to reach results that favor corporations and wealthy property owners. In both articles, Roberts’ non-literal interpretation of the clause seems to fly in the face of President Bush’s pledge to nominate judges who would strictly interpret the law, not make it.

Comment, “Contract Clause – Legislative Alteration of Private Pension Agreements,” 92 Harvard Law Review 86 (1978).

http://www.independentjudiciary.com/resources/docs/John_Roberts_Report.pdf