Thursday, February 24, 2005

Takings Clause

Orin Kerr writes:
Textualism and the Takings Clause: I don't know much at all about the Takings Clause, so I hope the Takings Clause experts out there can help me (and inform the VC's readers) with a very basic question I have concerning the issues raised in the Kelo v. City of New London case. In Steve Bainbridge's post linked to by Randy below, Steve notes the text of the Takings Clause:
Nor shall private property be taken for public use, without just compensation.
Steve then adds:
Note that the Takings Clause has two independent requirements: (1) just compensation must be paid; (2) the property must be taken for a "public use." This second requirement means that the government may not take away your property to give it to some other private individual (or company) who will then devote it to their own personal or business use.
I have no expertise at all in the Takings Clause, but my understanding is that this is more or less an accurate summary of exsiting Supreme Court doctrine. As best I recall, the Supreme Court has interpreted the Takings Clause this way for a long time.

At the same time, this isn't what the text of the Takings Clause actually says. The text of the clause says that if private property is taken for public use, then just compensation must be paid. The Constitutional text doesn't address takings for private use at all. Not only would such a taking seem to be allowed by default, but the Constitutional text doesn't even seem to require the government to pay just compensation for it. The text doesn't say, "Private property shall not be taken for private use, nor shall private property be taken for public use without just compensation." It only says "Nor shall private property be taken for public use, without just compensation." Obviously there are good policy reasons why we might not want the Court to read the text this way, and there are also reasons why someone might or might not be a textualist. Still, if you're a textualist it seems that you're kinda stuck with that reading.
Two points:

1. This argument is the equivalent of the following: "The Fifth Amendment prohibits the government from putting someone in jeopardy of 'life or limb' twice 'for the same offense.' Granted, this prohibits the government from prosecuting someone twice for the same offense, but it doesn't prohibit the government from prosecuting people for no reason at all. Thus, if you're a textualist, you have to admit that the 5th Amendment allows the government to prosecute innocent people willy-nilly."

What's wrong with that argument (ignoring other constitutional provisions)? Just that a prohibition on the exercise of governmental power does not imply that the government can oppress people in every conceivable way that the Framers didn't think to explicitly prohibit.

2. Relatedly, such reasoning shows exactly why some of the Framers thought that a Bill of Rights would be dangerous: Because people might grow to think that a list of rights was somehow exclusive. Consider Alexander Hamilton's argument from Federalist 84:
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
So: The fact that the Takings Clause requires compensation when property is taken for "public use" in no way implies that property can be taken without compensation if it is for "private use." Instead, it implies that the government is not empowered to take property for "private use" under any conditions whatsoever.

Stuart Buck


Blogger KipEsquire said...

Good post. Just goes to show that, even among scholars, common sense is not so common.

I gave up on VC long ago -- more often than not they're just trying to show off how smarmy they can be.

8:41 AM  
Blogger T. F. Stern said...

While I agree with your information, the word Implication is all that an Activist Judge needs to justify a negative ruling.
Stay on top of this and keep us informed.

8:37 PM  
Anonymous Anonymous said...

I posted a comment on the VC RE this post ... there was a big debate as to the definition of textualist ... was it literal or contextual or something else ... I totally agree that even if something does not expressly state a prohibition, it does not mean the converse or non-stated is fair game. It reminds of the term perfection - there is only one, but millions of non-perfections ... a textualist approach is meta-physical in that it believes a series of random symbols can encapsulate a perfect policy w/ unlimited adaptability ... no such animal in my mind

9:50 PM  
Blogger Eric Rasmusen said...

I blog on this theme today (Feb. 25) at

and give some reasons why private use takings are *less* dangerous than public use ones.

12:09 PM  
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9:28 PM  

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