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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.

  My question is, what am I missing? How can a textualist agree with the Court's current reading of the Takings clause? My very quick look at the cases suggests that the Court picked up the "public use" element as a requirement for a taking back in the days when the Justices limited the legislature's authority to the "police power"; the idea is that a taking has to be a public use for it to fall within the police power. But the "police power" limitation wasn't rooted in the text of the Constitution, either. It seems to me that a good textualist would say that either the taking in Kelo was for "public use" and required comepnsation or was for private use and doesn't require compensation at all. Oddly, though, I can't seem to find any self-described textualists who interpret the Takings Clause this way.

  I have enabled comments.

Greedy Clerk (mail):
The answer is actually quite simple: The takings clause must be read in conjunction with Congress's Article I powers. (Recall that when the Fifth Amendment was first ratified, it was only applicable to the Federal Government.) Thus, the only use to which Congress could condemn property would be for public use --- i.e. those uses consistent with Congress's specific, enumerated powers.

Now, one must also recall that current Takings jurisprudence actually evolves from Due Process Jurisprudence --- that is, the first part of the Bill of Rights held applicable to the States was the Takings Clause (sometime in the late 19th Century). And the Court was not so much focusing on the takings aspect of it, but was focusing on the due process, i.e. that the state could not deprive someone of property without due process. The process that was due was that it be consistent with the takings clause --- it be for public use, and that just compensation be applied if it were taken.

Thus, while you are techically correct that the Takings Clause itself does not limit takings to public uses, when it is read with the Due Process Clause (which is right next to it in the Fifth Amendment) then a textualist should have no problem finding that the requirement that the property be for "public use" is part of the process due under the Fifth Amendment (or the Fourteenth in the case of the states).

Are we clear now?
2.23.2005 4:33pm
John Newquist (mail):
I think Greedy Clerk's got it right.

John
2.23.2005 4:39pm
OrinKerr:
This is an interesting historical explanation, but why would the "process" that is "due" incorporate a limitation from the scope of Article I powers? How is that a "process"?
2.23.2005 4:52pm
Mastiff (mail) (www):
Another way to look at this is with a fortiori reasoning (or what Talmudists call kal v'chomer, from smaller to greater). If the government is expected to pay compensation even when the land will be used publicly, then the government must certainly be expected to pay compensation if the land will be used privately.
2.23.2005 4:53pm
VirginBruce (mail):
It is the 10th Amendment's limitation of unenumerated powers, coupled with the 4th Amendment's guarantee of individual security in "persons, houses, papers, and effects," that prohibits government taking for other than public use as authorized in the 5th Amendment... but then, the 10th Am. has been tread so far into the dirt at this point, it's doubtful that anyone can see it anymore.

Yet without it, government operates under virtually no limit at all.
2.23.2005 5:15pm
seth b tillman (mail) (www):
I think greedy clerk is 1/2 right and 1/2 wrong.

Every exercise of congressional or federal power must have its source in some constitutional grant of power per Article I (or some other article). Power exercised towards those constitutional ends embrace the means necessary to accomplish them. That includes takings. But every such exercise of power is for a public purpose -- exercising some grant of substantive power under the constitution is a per se public purpose. Or to put it another way, if the taking can reasonably be said to be a step in the process of effectuating the goal of some substantive grant of federal power per Article 1 (or some other article), then it is a public purpose in all events. If it does not achieve such a goal, the taking is not constitutionally permissible anyway, notwithstanding an offer to justly compensate.

I know no good reason to limit or interpret the scope of the Takings Clause vis-a-vis the Due Process Clause as an originalist matter, notwithstanding contra late 19th century Supreme Court jurisprudence. The two clauses serve independent purposes -- the Takings Clause mandates compensation without respect to process (i.e. substantive justice), the Due Process Clause directs the authorities effectuating takings to abide by then extant rules in achieving a taking of property (i.e. procedural justice). These are different policy goals.

How this plays out against the states (or municipalities acting under delegated authority) per the 14th Amendment incorporation is another issue.

Nothing stated above should be considered a comment on the merits or facts of any now pending or impending litigation. I am only commenting on the abstract legal and textual issue posed by Orin Kerr.
2.23.2005 5:16pm
Stephen W. Stanton (mail) (www):
Speaking as a non-lawyer, and commenting only on the meaning of the sentence in plain English...

The silence about "private use" does NOT imply that compensation would not be due for such use.

Burger King can say "Nobody is allowed to leave without paying for the cheeseburgers they ordered." That does NOT create a loophole for people who ordered onion rings and milkshakes.

Now stepping back from this sentence alone and looking at the broader Constitution...

Nowhere does it say or imply that the government can take property from one person and give it to another for private use. It's not an enumerated power.

That said... A lot of redistributionist laws have been allowed to stand in spite of that. (Screwing the rich is not an enumerated power.)

So really... The meaning of the sentence only matters if the Supreme Court says it matters.

I have no faith in the Court to actually understand the words of the Constitution in the long run. (e.g., 90% tax rates in peacetime were just peachy...)
2.23.2005 5:17pm
LizardBreath (mail):
Wouldn't the reading of "due process" here be "access to the courts"?

Governmental actor A wants to take private property for public use. Property owner X seeks judicial review of the governmental action. Judge J holds that, under Article 1 as limited by the takings clause, A may take X's land.

Governmental actor B wants to take private property for alternative private use. Property owner Y seeks judicial review of the governmental action. Judge L holds that she can find no basis for B's asserted right to do this (this has somehow turned into a counterfactual)-- no taking.

The process in the "due process" clause is only that necessary to get judicial protection of any right.
2.23.2005 5:23pm
Jeff R.:
(Another utterly non-lawyer talking, but...)
Doesn't the general rule that the state can't just up and take your property show up in the 4th amendment ("secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"), making that public use/just compensation mention in the 5th an exception to that general law of property rights?
2.23.2005 5:24pm
JJ:
Excuse my ignorance, but is there a judicial definition of "public use?" In other words, can a city take land and hand it over to a private developer to build a "public" facility such as a mall? Aren't there situations in which a private developer could build a subdivision with a number of houses and a large park? The park, if available to the general public, would be a "public use" of the land, and it could be the case that the park would not be able to exist without the subdivision.
2.23.2005 5:30pm
Greedy Clerk (mail):
Screwing the rich is not an enumerated power.

I am not going to be drawn into that argument --- suffice it to say that the rich are hardly getting "screwed" these days, but that is a topic for another day.

As to Professor Kerr's question, I think you may have misunderstood what I was saying. The reference to Article I powers does not have to do with the process due, but has to do with the fact that Congress can only act within its enumerated powers (and the implied powers necessary and proper to carry them out) --- these powers are presumably public uses. So the only way Congress would have power to take property in the first instance is if it was for a public use.

The reference to the Due Process Clause was to explain why the States (who are obviously not limited to certain enumerated powers in the federal constitution) are also limited to takings for public use only. I.e. that the process due to an individual before the government can "deprive" that person of "property" (see 14th Amend DP Clauses) is that the property be for public use.

Seth, I don't see why you say I am "1/2 wrong"---your statement appears to agree completely with what I said.

In any event, I am not shy to jump on textualists for being hypocrites when I feel they stray from their principles (Bush v. Gore anyone?), but in this case, I think a textualist is fully justified in believing that before the government (state or federal) can take property, it must be for a public use. The definition of public however is, as the cases have shown, not an easy issue. And it basically comes down to who we want to make the ultimate decision on the issue --- the Courts or the legislatures; I think there are good arguments on both sides, and haven't made up my mind.

2.23.2005 5:33pm
Stephen Rider (www):
We also need to widen that quote from the 5th amendment... Here is (with edit) a more complete sentence: "No person shall... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."

Taken in tandem with the statement (Amendment 10) that powers not enumerated in the Constitution are not available to the government, (in theory, anyway...), this sentence is actually not a prohibition, but a specific enumeration of such a power -- a statement that the government CAN, with "just compensation" take private property for public use. The silence with regard to taking for private use leaves that a non-enumerated power, and thus prohibited.

I'm not a lawyer; I can, however, read.
2.23.2005 5:36pm
Greedy Clerk (mail):
One more thing in regard to Prof. Kerr's question: The limitation on taking property for public use is "process" in the same way that the limitation on taking a person's liberty except on conviction of a crime beyond a reasonable doubt is "process." The distinction between process and substance is not always that clear (as all first year law students learn in the cases sprining from Erie).

In the context of the federal government, if you want to look at through the scope of the Due Process Clause of the Fifth Amendment (which I don't think is necessary) than the "process" due to an individual is that Congress take the property for public use, and the Constitution specifies (or at least implies very strongly) that when Congress exercises its Art. I powers, it is necessarily for public use.
2.23.2005 5:40pm
Greedy Clerk (mail):
Stephen, your common-sense reading just summed up what it took me a lot longer to say. Sometimes we lawyers get lost in all the history and cases that we forget to just use common-sense. You are absolutely right. No power was ever granted to federal government take property for private use. It's just that easy. (The state government issue is mroe complicated and I think I have summed it up pretty well.)
2.23.2005 5:43pm
seth b tillman (mail) (www):
Into the breach ...

Greedyclerk wrote:


[W]hile you are techically correct that the Takings Clause itself does not limit takings to public uses, when it is read with the Due Process Clause (which is right next to it in the Fifth Amendment) then a textualist should have no problem finding that the requirement that the property be for "public use" is part of the process due under the Fifth Amendment (or the Fourteenth in the case of the states).




Neither a textualist nor an originalist needs the Due Process Clause to limit takings to public purposes. That latter conclusion arises merely from enumerated powers per Article I (and other articles). It would be just as true absent the Due Process Clause! Due process has nothing to do with it. A person paid just compensation whose property was seized for a public purpose nevertheless has a constitutional claim (as an abstract matter) if the government either violated its own procedures to effectuate the seizure or violated its own procedures to determine the amount to be paid in compensation. This isn't apples and oranges, this is cats and oranges.

To put it another way, your position is only correct if the doctrine of enumerated powers has its textual origin in the Due Process Clause. Considering the Due Process Clause is in a johnny-come-lately amendment, 1789, that won't wash. Is that a mixed metaphor?


Nothing stated above should be considered a comment on the merits or facts of any now pending or impending litigation. I am only commenting on the abstract legal and textual issue posed by Orin Kerr and Greedyclerk.
2.23.2005 5:47pm
frank cross (mail):
I think you're scrambling here. Greedy Clerk's argument depends on the fact that the enumerated powers are "presumably" for public uses. That doesn't sound textualist to me.

Now, textualism is more than grammar, and I think one can infer from context that private use takings are prohibited. But I think it's context, not language.
2.23.2005 5:56pm
Polybius:
This speech (pdf) by Judge Kozinski is quite funny. Actually it's more of a "debate introduction" than a "speech" but it's about interpretations of the Takings Clause.
2.23.2005 5:56pm
Greedy Clerk (mail):
Seth, I am with you on the enumerated powers argument (as it was precisely what I put forth in the first comment), but that does not explain at all why the states cannot take for private use. As I say, you need the Due Process hook to do that. Because (1) the takings clause only originally applied to the feds (and by the way was ratified in the same amendment as the "johnny-come-lately" 5th Am. DP clause); and (2) the states are not limited to the enumerated powers of Article I (obviously).

By the way, feel free to interpret my comments as a commentary on any pending cases, litigation, etc.

2.23.2005 6:05pm
a&w (mail):
Forgive my naivete, but does a good textualist also insist that Congress can literally make no law abridging freedom of the press? I'm aware that some jurists and commentators (e.g., Justice Black) have taken this position, but I didn't think it held sway among textualists of today. Put another way, I thought there was a difference between being textual and being literal where constitutional interpretation is concerned.
2.23.2005 6:08pm
Tom W. Bell:
This same question came up in the comments following my Agoraphilia blog post on the Kelo case, What's the "Use"? My reply: "Should you want a purely textual explanation for the ban on taking private property for private use without offering any compensation, you need to read the 5th together with the 9th. The latter ensures that, absent a specific grant of power, federal (and thanks to the 14th, also state) officials have no right to take private property at all. The 5th represents an exception, and as such does not allow any takings for private use."
2.23.2005 6:10pm
Greedy Clerk (mail):
the enumerated powers are "presumably" for public uses

Uhhh, the enumerated powers of Article I can be for no other use than public use. They are the enumerated powers of a public government. That's about as textualist as it gets. Read the Federalist Papers---no one understood that Congress had the power to do anything other than act in the public good via its enumerated powers. (See Const. Preamble, Spending for General Welfare Clause, etc.).

2.23.2005 6:11pm
Christopher D. Carlson (mail):
I am also speaking as a non-lawyer here,

But is "public use" really a substantive limitation as it stands? Couldn't New London have CT declare the waterfront a state park and rent out cabins (like they do at Gilbert Lake, in NY and other places of WPA fame) thus collecting revenue that way? Isn't a better barometer of prohibited takings whether the government has the power to tax the taking in whatever form its developed in, since the government cannot "tax" itself? This reasoning applied in Kelo would clearly make the taking unconstitutional, textualist/originalist arguments aside.
2.23.2005 6:14pm
noahp (mail) (www):
As a textualist, why can't the states take property for private use? States are not limited by Article I. The 14th amendment only talks about taking property "without due process of law." It leaves out any mention of just compensation, which as an elementary canon of textual interpretation, we should take that as a sign that the framers of the 14th amendment meant to leave that bit out, knowing that the framers added did not believe "just compensation" to be implied by "due process" (or else the stuff on "just compensation" would have been superfluous.) Thus, contrary to what Greedy Clerk has said, I do not think that it is obvious that "due process" implies "public use." "Due process," moreover, as the Court has told us, is to be read in light of the "evolving standards of decency" of civilization. I think that this was affirmed by Lawrence v. Texas. So there is no reason why the Court could not declare that contemporary society does not regard taking private property for "economic development" as "shocking the conscience," as is the Court's standard for "due process" violations.
2.23.2005 6:39pm
seth b tillman (mail) (www):
Kerr's opening question was: "How can a textualist agree with the Court's current reading of the Takings clause?"
And, I evaluated your response in light of his question.

So for openers -- although a textualist must take the position that the 1st Amendment was a limit on the federal government (by limiting Congress), such a person need not take that position with regard to other amendments in the Bill of Rights. Those amendments make no express mention of the federal government and/or Congress. "[No person] nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Contra Barron v. Baltimore.

So for a textualist, the idea that you need the 14th Amendment to get just compensation against the states is an open question. You might not. You might want to directly apply Amendment V against the States. Now you might think this result absurd -- but that is what the Constitution says. Or so a textualist might argue. And that is what Kerr asked.

But whatever else you or a 19th century jurist writing takings jurisprudence per the 14th Amendment might do, a textualist would not get just compensation via the due process clause. Due process is just process. If a state does not provide for any process, then the out-of-luck claimant (former landowner) has got all the process he is due. And if a state provides exclusively for notice and an opportunity to be heard, but no just compensation, then such a former landowner whose property has been seized, is again out of luck -- from the point of view of a principled textualist. That might not be the correct position, but that is textualism.

To extract a substantive right for just compensation out of the 14th Amendment's Due Process Clause by applying the 5th Amendment's Just Compensation Clause against the States (conceivably) may be original intent or original purpose or even original meaning jurisprudence, but it is not textualism. (And a smart textualist would ask you nontextualists -- as long as we are applying the Bill of Rights against the states via the 14th Amendment's Due Process Clause, exactly how do we apply the 5th Amendment's Due Process Clause against the state? Inquiring minds want to know!)

Why? Because "due process" is about the procedure -- and the text of Amend. 5 establishes -- in the text of the Constitution -- that the values facilitated by process are not coextensive with promises of substantive protection for just compensation. If they were so coextensive the last clause of the 5th Amend. was just surplusage -- and that cannot be correct (for a committed textualist I might add). Right?

Are we in agreement yet?

Personally I don't like complex answers, but Kerr asked a complex question.

Nothing stated above should be considered a comment on the merits or facts of any now pending or impending litigation. I am only commenting on the abstract legal and textual issue posed by Orin Kerr.
2.23.2005 6:42pm
RKV (mail):
"As a textualist, why can't the states take property for private use?" Simple really, it depends on what their state consitutions say.
2.23.2005 6:51pm
Hayek (mail):
As to US action: A textualist would probably conclude, after reading Art. 1 sec. 8 (and Amd. X) that congress has no power to take private property for any purpose unless in furtherance of the enumerated powers. Its difficult to envision a situation where that would entail a proper taking for a "non-public use"; but, if those facts were presented, a textualist would likely agree with you Orin.

As to a state action: this one is much harder. A textualist would likely never had read the due process clause of the XIV amendment to include substantive due prociess, but would likely have construed the privileges &immunities clause differently than the Court has, in order to provide citizens the same protection against a state action that the textualist would provide the citizens against federal action -- including takings. But I'd want to spend some more time thinking about it.
2.23.2005 6:55pm
Perseus (mail):
It would be perverse if the Constitution, which creates all sorts of safeguards to protect private property against government abuses--amendments 3, 4, 5, 7, 8--were interpreted as permitting the government to take Peter's property and give it to Paul without at a minimum compensating Peter. The 7th amendment--which requires a jury trial in CIVIL suits--seems particularly relevant since it implies that the government might very well be tempted to abuse its power to transfer property from one private party to another. (Others have mentioned the idea of enumerated powers).
2.23.2005 6:55pm
Evelyn:
Presumably, one could argue that the impairment of contracts clause prevents the states from engaging in uncompensated taking, even without incorporation.
2.23.2005 6:56pm
Sebastian holsclaw (mail) (www):
"I thought there was a difference between being textual and being literal where constitutional interpretation is concerned."

A textualist attempts to interpret the words and phrases of the text as they would have been commonly understood at the time they were written.
2.23.2005 7:05pm
KW (mail):
Funny, this is a question I've recently done some research on myself. Not from a textualist perspective, however.

The general consensus (to the extent that one exists) is that there's an implied bar on non-public-use takings. You see this statement, for example, in Thomas Merrill's piece, 72 Cornell L. Rev 61 at n.2 &accompanying text. ("When a proposed condemnation of property lacks the appropriate public quality, the taking is deemed to be unconstitutional and can be enjoined."). The issue is also raised in, inter alia, 26 Am. Jur. Eminent Domain 2d s 47.1, which cites to cases on the issue. (The Am Jur piece states that non-public use takings are compensable under the Fourteenth Amendment's due process clause as an invalid exercise of the state's police power).

There is some academic commentary to the contrary, such as a student note at 97 Mich. L. Rev. 245.
2.23.2005 7:09pm
Greedy Clerk (mail):
Due process is just process. If a state does not provide for any process, then the out-of-luck claimant (former landowner) has got all the process he is due.

Seth, I do not see how you can say this so confidently. Indeed, your understanding that the only process due is the process provided for by the state is contrary to almost 150 years of American jurisprudence --- you really are that confident that you somehow understand the meaning of the "due process" better than the collective wisdom of jurists throughout the years. In any event, as I noted above the line b/t "process" and "substance" is not always so clear cut. According to your interpretation, the state could imprison someone for life according to the "process" of having a cop say that he should be imprisoned were that all the process a state decided was due. American jurisprudence has always (perhaps there were a few outliers through the years) understood that a person cannot be imprisoned without the "process" of being proved criminal beyond a reasonable doubt (let's put aside civil commitment). Yet, according to your understanding of the Due Process Clause, which is contrary to centuries of understanding, a state could decide that the only process due is whatever it wants. Sorry, but that don't work.

2.23.2005 7:21pm
a&w (mail):
Seth, thanks for the reply. My question was motivated more by Prof. Kerr's literal reading of the takings clause. He seems to think that textualists are "stuck" with reading that private property may, consistent with the Consitution, be taken for private use without just compensation. But why?

My point is that textualists have no problem interpreting the First Amendment in a way that contradicts the literal text. Why wouldn't a textualist simply do the same with the Fifth? Seems kind of silly to think the framers would require compensation if the taking is for public use, but waive the requirement for private ones.

Forget policy arguments. Isn't there any room for common sense in the textualist's interpretation?
2.23.2005 7:39pm
a&w (mail):
Sorry, that should have been thanks Sebastian.
2.23.2005 7:41pm
seth b tillman (mail) (www):

This really is getting funny.

I have not put my positions forward. I have put forward the views of a hypothetical committed textualist -- because that is what Kerr asked.

Not everyone is a textualist. Most U.S. judges (federal and state) are not. So this position (as I explained above regarding the Takings Clause) is not against the collective wisdom of the last 150 years of judging -- these judges were not textualists -- that is all. Certainly Marshall was not in Barron v. Baltimore when he held that the Bill of Rights did not apply to the states. That might have been correct as the subjective intent or expectations of the framers and ratifiers and public, but it is not a conclusion that is commanded by the text of the Bill of Rights. It was just his conclusion.

A textualist would say -- indeed must say -- that althought the 14th Amendment embraces due process protections against the state -- they have to be "processes" and they have to be "due." Otherwise you are not talking about textualism. I hope we can agree on that! Those processes need not be processes of state law -- they can be municipal, federal, even treaty processes -- possibly even the law of nations for all I know. But they cannot be mere abstractions for substantive protection like "just compensation" apart from positive law. And the reason we know that is: because if just compensation were already implicit in the idea or ideal of due process, then there was no reason to promise the public both benefits in Amend V. (Unless of course you make the hard to support argument that term "Due Process" embraced substantive protections as a matter of the meaning of everyday words when the 14th Amend's Due Process Clause was passed absent a coextensive Takings Clause -- as in Amend V.)

Is that a good result: that a state might take absent just compensations (as a matter of federal constitutional law). Maybe not.

The Supreme Court of India used to have some very committed textualists on it. They too have a Due Process Clause in their national constitution. I think it was Mr. Justice Gajendragkar (before his elevation to CJ), who wrote: "if the statute says the bishop of Rochester shall be boiled in oil, then if the officer boils him in oil, he has got all the process he is due."

This is from memory. I don't have the reported decision handy. I don't have the cite handy either for that matter -- alas All India Reports does not appear on Westlaw. So you will have to trust me on this.

By the way, that was a committed textualism.

Recently the Supreme Court of India's decisions have become thoroughly Americanized. I blame this untoward result on the presence of an ever growing number of LLMs from India taking U.S. law degrees and returning home to practice law.

Perhaps this century's most committed textualist was Chief Justice Owen Dixon. Justice Kirby, HCA, recently said in his Hamlyn Lecture (Exeter, UK 2003):

Over and above these causes of apparent judicial passivity was one potent influence. It was the impact on the Australian legal psyche of the doctrinal position adopted by Sir Owen Dixon. Dixon had served as a Justice of the High Court of Australia from 1929 and as Chief Justice for twelve years after 1952. By the power of his legal knowledge, the wisdom of his judgments and the effectiveness of the exposition of his philosophy in and out of court, he taught generations of Australian judges, lawyers, law teachers and students that "there is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism." Dixon confidently and proudly remarked that the court over which he presided was, by some, "thought to be excessively legalistic". He declared that he would be "sorry to think that it is anything else".

Can you in any ways doubt what Dixon or Gajendragkar would do with a due process clause?
2.23.2005 8:06pm
Rickbert:
Uhm, maybe someone can set me straight, but I thought the problem wasn't so much over the public/private use question, or the due process issues, so much as whether or not the state can (apparently) expand the definition of public use to include the question of whether a different private owner/use would generate greater public revenues?

That does seem to be a novel interpretation of public use, but is it? Does anyone know the history of British/common law on this? It's hard to imagine a precedent for this going unnoticed for so long. After all, if the tax revenue from private land really is a public use, shouldn't history be just jam-packed with instances of the rich forcing the poor out of choice real estate, courtesy of the local city council?
2.23.2005 8:08pm
Greg (mail):
This is interesting, because Justice Harlan's dissent in Plessy v. Ferguson was based on just such a controversy:


Very early the question arose whether a state's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly, it could not, unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use. Yet it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean if not that building a railroad, though it be built by a private corporation, is an act done for a public use?'
2.23.2005 8:10pm
VC Reader:
Jed Rubenfeld interprets the Takings Clause in the way you describe.

Jed Rubenfeld, Usings, 102 Yale L.J. 1077 (1993)
2.23.2005 8:10pm
MP:
It seems to me the substantive issue here is one of "use." The term "public use" can be so overbroad, and include so many secondary links, as to apply to virtually any action. Does creating a job (or two or three) in the community, which benefits the "public," enough reason to take someone's private property. From a textualist perspective, I don't believe that a department named "economic development" was a common occurence when the 5th amendment was written and that a public use included more than a handful of distinct public purposes. Taking one's private property and giving it to another private entity, such as a corporation, would seem to give the government an absolute power that would abridge freedoms throughout the constitution. I would think that the federal government should at least be a solid floor with regards to the state's actions.
2.23.2005 8:17pm
Thomas (mail):
If a textualist is not also an originalist, then the question Kerr presents is a hard one.

But if the textualist is also an originalist, then the question may not be as hard. The focus for originalists is on how the text was originally understood. It seems likely--though I haven't investigated this question at all--that at the time of the 5th amendment the amendment was understood to mean (whether because of background assumptions or for other reasons) at least that compensation is required for takings, whether or not for a public use.
2.23.2005 8:32pm
Nemes (mail):
Taking it all the way back to Stephen, who wrote:
The silence about "private use" does NOT imply that compensation would not be due for such use. Burger King can say "Nobody is allowed to leave without paying for the cheeseburgers they ordered." That does NOT create a loophole for people who ordered onion rings and milkshakes.

Taking your example, you are right that Burger King's prohibition on leaving without paying for cheeseburgers does not create a loophole for milkshake buyers. However, it doesn't say milkshake buyers must pay before they leave either. That would require another rule. The first rule is simply silent as to the milkshake buyer. In short, the stated rule does not cover unstated activities (i.e., buying milkshakes), though we may collectively understand that a similar rule would apply to unstated activities.

On the whole of the matter, Greedy Clerk has it right on. And that Contracts Clause thought was intriguing, but I don't see how it applies. With whom does the land-owner have a contract that would be infringed?
2.23.2005 8:33pm
Doug Schwartz:
The original intent of the takings clause is getting lost in all this parsing of words. It is unique in that it was the only clause in the Bill of Rights not inserted at the request of one or more of the states during the first Congress. This means it was probably all Madison's doing, and the original intent resides with one man who left no doubt about how he felt on this topic. And he is not alone, Until Berman v. Parker in 1954, it was clearly understood that the Constitution reveres private property and it would have been considered by the founders as absurd that anyone could contemplate takings for anything other than necessary purposes. Article 1, Section 8 mentions post offices, postroads, and "Forts, Magazines, Arsenals, dock-Yards, and other needful
Buildings." Note the next-to-last word. Every word in the Constitution has a reason for being there. If a use is to be public (i.e., if it is to be used by the public) there also must be a public need. In Kelo, the trial court threw out the taking of 11 of the 15 properties at issue because there was no clear idea of the land was even going to be used for, let alone what the need might be.

To examine the thought process of the author of the Takings Clause, I have excerpted portions of his writings on property below:

"Government is instituted to protect property of every sort; . . . This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own. . . . That is not a just government, nor is property secure under it, where the property which a man has . . . is violated by arbitrary seizures of one class of citizens for the service of the rest. . . . [Kelo in a nutshell]

If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and the property in rights: they will rival the government that most sacredly guards the former; and by repelling its example in violating the latter, will make themselves a pattern to that and all other governments."
See Madisonís National Gazette essay, March 29, 1792: http://www.constitution.org/jm/17920329_property.htm

"Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents." -Madison (President #4) in a letter to Jefferson (President #3)

Nor was Madison alone among the framers:

"Government has no other end than the preservation of property." -John Locke (not a framer, but close enough for govt. work)

"The moment the idea is admitted into society that property is not as sacred as the Laws of God, and there is not a force of law and public justice to protect it, anarchy and tyranny commence. Property must be sacred or liberty cannot exist. If 'Thou shalt not covet' and 'Thou shalt not steal' were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free...." -John Adams (President #2)

"Next to the right of liberty, the right of property is the most important individual right guaranteed by the Constitution and the one which, united with that of personal liberty, has contributed more to the growth of civilization than any other institution established by the human race." -William H. Taft (President #27 and Chief Justice of the United States)

The Taft quote is tossed in to underscore that this was the general thinking until at least the early part of the 20th Century.

The point is that to interpret the takings clause as somehow condoning economic benefits seizures is something that would have been inconceivable to anyone 200 or even 100 years ago.

Berman stood the Bill of Rights on its head by declaring the legislature, not the judiciary, as being "the main guardian of the public needs to be served by social legislation." The judiciary is supposed to protect us from the legislature and the executive, not abet theft, which is all that takings for economic benefit really are. The Bill of Rights assumes government will often fall under the control of the corrupt, and will then be used to deprive us of our civil liberties. The courts, not the legislatures, are our ultimate protectors. If the enormous number of takings for economic benefit since Parker (easily hundreds of thousands of properties have been seized) teaches us one thing, it is that legislatures will attempt to steal as much as they can from the citizens. Witness the amicus briefs in Kelo. The plaintiffs were supported by right, left, libertarian, business and religious organizations. The municipality was supported by only governments and lawyers. Hardly a political mandate. It will hopefully fall to this court to reverse Berman and take back this unwarranted authority legislatures have seized. (That was a pun.)

The takings clause means what it says. Private property can only be taken for public USE, not benefit. The property must be available for use by all. I believe it was Scalia who, during the Kelo argument, pointed out that right-of-way takings by publicly regulated utilities are legitimate because these rails or gas lines or whatever are forced to be made available for use by all as a consequence of the regulatory scrutiny they operate under. Other than that, private parties can not end up owning seized properties. But to imagine that Madison would have countenanced takings for public BENEFITS, for the general welfare, is absurd. Economic benefits takings have devolved into an anarchy of governments stealing properties to quench their insatiable appetites for revenues (in those cases when they are done for the reasons stated) or to act as an agent for a wealthy entity intent on stealing the property of someone lacking political clout.
2.23.2005 8:57pm
Tom Hanna (www):
Rickbert,
Does anyone know the history of British/common law on this? After all, if the tax revenue from private land really is a public use, shouldn't history be just jam-packed with instances of the rich forcing the poor out of choice real estate, courtesy of the local city council?

I started to cite the Highland Clearances as a taking for private use just such as you described (with entire villages being forced out of their homes to make room for the Lords' sheep). Then I realized that they were actually evictions, not "takings". But that in itself is an answer to the question re: Common Law. As recently as the early 1800s a lord could "evict" entire villages on the theory that he owned all the land and the people living on it were just tenants. There was no such thing as a taking because the Lord, the government, already owned the land.
2.23.2005 9:08pm
Palooka:
I think Seth is misunderstanding textualism, and is positing the ridiculous caricature of it as simple, unrefined, and ultimately useless.

Textualism does not prohibit a judge from taking into contemporaneous understandings, background, and history. Textualism, as I understand a Scalia-like textualism, does not exclusively focus on the text itself. The text is paramount, and understanding what the text was meant to convey is paramount, but that does not limit a judge to ONLY the text in pursuit of those goals.

Nor is Seth's depiction of how a textualist views due process correct. It is true that textualists despise "substantive due process" but that needn't result in Seth's caricature. The court can ensure that prcess is provided. It can ensure that a just process is provided. It can regulate the manner of that process. Whereas Seth believe a textualist will only require that some process (even no process?) is performed.
2.23.2005 10:27pm
Palooka:
To Kerr's original question,

When government takes private property that IS a public act or use, even if the government utlimately transfers that property to private hands. Government is a public agency, therefore any government action constitutes a "public use." Even if that use originates in corruption, and certainly if that use is intended to increase government revenue via sale, and even if the public wishes to increase social harmony via redistribution. All is that is public action or use.

Thus textualism is not in direct conflict with the jurisprudence you describe.
2.23.2005 10:35pm
JAD (mail):
Steve "non-lawyer" Rider got it right. So that it makes sense to the rest of you lawyers I will state the principle in Latin: <i>Expressio unius est exclusio alterius</i>. (Expression of one is exclusion of the other.) The government can't take your stuff and give it to someone else, thats what this country is all about. Jackass.
2.23.2005 10:35pm
OrinKerr:
Palooka writes:

"When government takes private property that IS a public act or use, even if the government utlimately transfers that property to private hands. Government is a public agency, therefore any government action constitutes a 'public use.' Even if that use originates in corruption, and certainly if that use is intended to increase government revenue via sale, and even if the public wishes to increase social harmony via redistribution. All is that is public action or use."

I think that makes a lot of sense -- it's one of the two options noted in my initial post, and obviously the more sensible of the options. But note that this is quite inconsistent with existing law, which states that a Court must determine which government takings are for public use (triggering just compensation) and which are for private use (and thus impermissible even if just compensation is paid). The part that I can't see from a textualist perspective is the idea that the government cannot take property for private use even if just compensation is paid.

FWIW, I'm not making a normative argument that the Court should rethink its doctrine along these lines. I rather like the existing law as a policy matter, and in any event see the Court as basically bound by it as a matter of stare decisis. Rather, I'm interested in this mostly as an academic inquiry into the consistency of self-described textualists.
2.23.2005 10:58pm
Armen (mail) (www):
Clerk, if (presumably) any action by Congress is for the public, then doesn't that suggest that taking by the (Federal) government for any reason is ok because it is presumably public?
2.23.2005 11:02pm
Ken Summers (mail) (www):
[If you can stand anothe non-lawyer weighing in] It seems to me that a very common-sensical reading is that only taking for "public use" was contemplated. Taking for "private use" would be regarded as theft. I cannot believe that the framers would have left a hole that big, given the arguments against including a Bill of Rights.
2.23.2005 11:57pm
Palooka:
"But note that this is quite inconsistent with existing law, which states that a Court must determine which government takings are for public use (triggering just compensation) and which are for private use (and thus impermissible even if just compensation is paid). The part that I can't see from a textualist perspective is the idea that the government cannot take property for private use even if just compensation is paid."

I think that there are good reasons to worry, as a general rule, if government is taking property and ultimately placing it in private hands with no public utility gained when that transaction is not voluntary. The legitimate reasons for such a transaction seem few, if any exist. The context of what is "just" needn't be static, however. Just compensation needn't only relate only to fair market value, in other words. It would seem unjust indeed if the government took property you didn't want taken just to make a buck, or to sell to a more favored party. The amount of "just compensation" for a questionable act such as this would be higher than if the property were used for the public good.

The reason we allow for government to take property (with just compensation) at all is that this sometimes serves the greater good. When that greater good is diminished, or does not exist at all, then the amount of "just compensation" should rise rapidly (perhaps infinitely). Maybe there is NO just compensation possible for such a purpose, thus the exclusion of the possiblity by jurisprudence.

Moreover, as others have mentioned, insofar as the federal government is concerned, such power seems beyond those inumerated or implied by the Constitution. So there is a separate argument for the rightness of the doctrine you cite, even if it is by other means.
2.24.2005 12:22am
John Kay (mail):
I am a non-laywer too, and the conversation here concerns me greatly.

If the Court allows the government to take from some private interest and give to another private interest, have we not become a socialist state, or worse, an oligarchy? If this stands, in private economic relationships between private individuals (since a corportation is an individual) the government can become the middle-man or the strong-arm man for the rich and powerful at the expense of the less rich and powerful. What will "equal justice under the law" now mean?
2.24.2005 12:35am
OrinKerr:
Palooka writes:

"I think that there are good reasons to worry, as a general rule, if government is taking property and ultimately placing it in private hands with no public utility gained when that transaction is not voluntary. The legitimate reasons for such a transaction seem few, if any exist."

Absolutely, I agree. But this is a policy argument, not a textual argument.
2.24.2005 12:37am
Palooka:
Another point about the "consistency" of textualism.

Self-described textualists don't foreswear stare decisis. Doing so would yield the interpretive philosophy unpracticable. ALL interpretive schemes incorporate stare decisis. It is always the exception to the rule for every intepretive method--that a poorly decided or imperfect decision should nevertheless stand. Not because it is right, but because it has been so.

I wrote to you once before, when you observed in some Scalia comment a touch of pragmatism, that all interpretive schemes are (or at least should be) pragmatic. Each should do its best to yield the best outcomes, and the differences in interpretation originate from different assumptions. Textualists (I would describe myself loosely as one) do not believe in the utility of an all-powerful judiciary. Thus judicial power should be circumscribed somehow, and the most objective way to do that is textualism. That is the pragmatism at work behind textualism. Stare decisis, its own pragmatic principle, has its place along side the pragmatism of textualism as well.
2.24.2005 12:51am
Palooka:
"Absolutely, I agree. But this is a policy argument, not a textual argument."


I think you have, to a much lesser degree, committed the same error as Seth. Textualism doesn't have to be divorced from the situation. What is "just compensation" doesn't have to be a fixed formula, ignorant of the situation it is applied to. If the public utility is low or doesn't exist, then what is "just compensation" can change. That is what I suggest.
2.24.2005 12:56am
Palooka:
To expand a bit further.

If we consider the reasons for letting government take private property for "public use" in the first place, the reasoning becomes clearer. Allowing government to buy up private property to build a road or airport serves the public interests well, therefore government is allowed to forcibly take property with just compensation. In other words, we expect the individual to sacrifice for the public good, even though his sacrifice is reduced by compensation. As public utility diminishes, what is "just compensation" should increase because the underlying rationale has diminished. Why should government require an individual to sacrifice when the public isn't served?
2.24.2005 1:04am
Geoffrey Eaton:
Palooka's broad point -- that "when government takes private property that IS a public . . . usc," certainly is, as Mr. Kerr notes, "quite inconsistent with existing law, which states that a Court must determine which government takings are for public use . . . and which are for private use."

Without delving into the merits of the Kelo controversy, and for the benefit of the originalists lurking out there, it's worth pointing out that in the early years of the Republic there was considerable debate about this issue-- that is, the question whether the public interest is publicly defined or whether there are substantive limitations on it-- although most of that debate took place outside the context of the Takings Clause.

In the first thirty years or so after the founding the Supreme Court's ruminations on this topic are replete with broad statements to the effect that "the legislature is the guardian of the public interest" and can thus define that interest. (see, e.g., Justice Iredell's opinion in Talbot v. Jensen.; see also CJ Marshall in Providence Bank v. Billings: "However absolute the right of an individual may be, it is still in the nature of that right, that it must bear a portion of the public burthens; and that portion must be determined by the legislature"). The Dartmouth College case was arguably the beginning of the ascendancy of the private-rights movement that culminated in Lochnerism.

I point this out only to remind that property-rights groups tend to ignore the early history in favor of a sort of quasi-religious view of private property rights as an absolute-- a view that was predominant for only about fifty years of our history (and not the first fifty). The Founders' views on this issue were actually rather complex, and in a sense resembled Blackstone's: you can read Blackstone for pithy pronouncements of the absoluteness of property rights, but they don't obviate the large portions of the Commentaries dedicated to describing the limitations on those rights.

For my part, although I tend strongly to favor the common law traditions of judicial policymaking, I agree with Palooka as a policy matter: the legislature decides what a public interest (or use) is, and that decision shouldn't be subject to judicial second-guessing. The legislature exists for precisely this purpose, and it's hard to understand why judges should meddle in it.
2.24.2005 5:34am
Peter Wizenberg (mail) (www):
What would be the point of using the modifier 'public' in the term 'public use' other than to rule out the power to take property for private use? If the intention is to allow takings for both pubic and private use, just drop the modifier and say Congress can take for 'use' period. So, although from a strictly logical interpretation, using the modifier 'public' does not necessarily entail excluding the modifier 'private', rhetorically, i.e., for purposes of communication it does. So I think a textualist interpretation would infer that the way the text is written, it communicates 'public' only.
2.24.2005 8:19am
David P. Cavanagh (mail):
A historical footnote: During ad just after the drafting of the Constitution, there was a significant debate about whether there was any need for a Bill of Rights. Madison et al. argued that there wasn't, since the Constitution was clearly intended primarily to limit the federal government's power and any thing that the Consitution did not explicitly grant to the government was a fortiori forbidden. How sadly we have fallen from the respect for the Constitution and its intentions that is implicit in the argument of Madison.
2.24.2005 8:32am
OrinKerr:
Peter Wizenberg:

I wonder, was the idea of a public/private distinction very strong at the time of the Framing? It may be that a modern reader could think that in light of 19th Century legal developments, not the 18th.

David P. Cavanagh:

But takings issues almost always arise in actions against State and local governments via the incorporation doctrine, right? The Kelo case is Kelo v. City of New London, not Kelo v. United States. Given that, I'm not sure I see the inconsistency.
2.24.2005 9:20am
Jonathan (mail):
As an economist (yet another non-lawyer) I see no problem with taking anything, so long as "just" means restoring the person from who the thing is taken in as good a position to him as he was before. We economists make a distinction between Pareto improvements to society in which the winners could theoretically compensate the losers to those in which they actually do, but there's something left over. None of this would even be controversial if people were actually compensated. The problem, of course, is that the guy who has his house stolen doesn't have to answer honestly when he's asked what it's worth to him. Ah... the improvements we could make to everybody's well-being with the invention of truth-serum. Is anybody working on it?
2.24.2005 9:29am
William Baude (mail) (www):
Professor Kerr,

I think the answer depends on whether by "textualist" you mean "analysis of text and structure" or "literal reading of text". Under the latter, the public-use-only inference is obviously a mere inference, and therefore illegitimate, but many people who refer to "textualism" actually mean the former. I don't know which you meant.
2.24.2005 10:09am
Jonathan Hightower (mail):
It seems to me that there's no mention of taking for private use because the people who wrote the Constitution assumed that such a thing would not take place... they probably even never thought of it. Remember also the 9th and 10th amendments. Any power not granted to the government in the Constitution does not belong to it. The Constitution does not authorize the taking of property for private use at all, so the government does not have the legal authority to do so.
2.24.2005 10:14am
WAB (mail):
Palooka writes:
"When government takes private property that IS a public act or use, even if the government utlimately transfers that property to private hands. Government is a public agency, therefore any government action constitutes a "public use." Even if that use originates in corruption, and certainly if that use is intended to increase government revenue via sale, and even if the public wishes to increase social harmony via redistribution. All is that is public action or use."

If textualism is to have any content, it must be based on the concept that each word contributes to the denotations and connotations of the text. Words are neither extraneous nor ignorable. Claiming that any action is a use, destroys the Framers' underlying reason for choosing the word "use" in the text. Use implies an ultimate purpose or status of the object (property in the takings case), whereas action (at least in the context of a taking) implies a proximate or mediative activity. Moreover, the claim that any act of the government is "public" when taken in conjuction with the claim that any action is a use, renders the phrase "public use" entirely superfluous as the Constitution is ennumerating and delimiting the actions of the government. Thus, the takings Clause would be reduced to "Nor shall private property be taken, without just compensation."

Given the reduced text, one sees that any taking requires just compensation in a textualist reading of the reduced text, answering Orin's question. However, the reduced text is not what the Framers wrote.

Either the entire text has meaning, or there is no textualism.
2.24.2005 10:26am
Peter Wizenberg (mail) (www):
Professor Kerr:

I don't know if the public/private distinction was phrased using those words, but I believe that the Framers were keenly mindful of the inherent differences between the governmental sphere and the non-governmental sphere, i.e., government (and criminals) sometimes interact with people involuntarily (against their will), using force, while in the non-criminal non-governmental realm people interact with one another in accordance with their own wills.

In the private realm people generally do things for other people either because they want to, or for the money or goods or services they'll be getting in return. Many people pay the I.R.S. because they fear having agents with guns seize their assets and/or their asses.

If we're looking at this issue through the prism of how the 18th Century Framers would have thought about it, I have absolutely no doubt whatsoever that the Framers would be utterly appalled by a U.S. Supreme Court that would uphold the actions of the city of New London in the Kelo case. And. let's not get into how the Framers would view what the courts have done with the commerce clause.
2.24.2005 10:30am
Sudha Shenoy (mail):
[non-lawyer] Isn't all this a distinction without a difference? Municipal officials have the power to transfer 'property' from one of their subjects to another. Why fuss over the fig-leaf? The officials will meet with no resistance.
2.24.2005 10:37am
Textualist Law Student:
So this might be repetitive of what others have said, but put simply: doesn't it matter what the legal background was pre-enactment of the 5th Amendment? Constitutions, like statutes, operate in the shadow of the legal background. If the existing legal regime was that the Federal Government could always take land for public use, but could never take land for private use, then the Takings Clause speaking only to restrictions on public takings would carry no positive affirmation of private takings.

In other words, the principle of inclusio unius est exclusio alterius, which is basically what Prof. Kerr is invoking, only applies if the two sub-classes (public and private takings) were subject to the same legal regime prior to the enactment of the Takings clause. If they weren't, then applying the canon would be a logical fallacy.

I take no position on what that legal background is, since I have little knowledge about it [though it seems that Greedy Clerk's post about enumerated rights, combined with the general limited nature of the government and strong protection of property rights at the Founding would imply that there were different rules ex ante]: my point is simply that a textualist must read words in the context of background legal norms and understandings.
2.24.2005 11:38am
juddy1 (mail):
Take a look at Justice Chase's opinion in Calder v. Bull (1798). He invokes "natural law" as precluding either the federal or state government, by way of example, from taking property from A and giving it to B. If the Takings Clause were understood to prevent not only "public" takings but "private" takings as well, why did he use the example of government taking from A and giving it to B as part of his discourse on natural law? It wouldn't have made any sense as there would already be an explicit provision in the Constitution addressing the matter (at least with respect to the federal government)--and he was trying to make a point regarding the validity of an unwritten constitution.
2.24.2005 1:36pm
Jason (www):
I'm not an attorney or scholar and so this textualist argument is rather new to me, but the notion that the constitution permits the taking of land for private use and requires no compensation is totally insane. perhaps i'm discovering i'm not a textualist, but i think it's safe to say that their intention was not to allow taking from one private party and giving to another. it seems they meant "public use" is the only justification for the taking of land. is anybody out there out seriously suggesting that's a responsible reading of the text? that would be frightening.
2.24.2005 2:30pm
Palooka:
If textualism is to have any content, it must be based on the concept that each word contributes to the denotations and connotations of the text. Words are neither extraneous nor ignorable.

----------
Yes, but neither should we assume the clause is perfect and without flaw. Textualism does not ONLY focus on the text, but also the contemporaneous understandings and intent, in order to extract what is the meaning of the text. It seems peculiar that the Framers would craft language which would circumscribe government appropriation only for things which will ultimately be used as "public use." I am not "ignoring" the text. I have read a broader definition of "public use" which is consistent with the purpose of the clause. What you suggest is a narrow reading of "public use," but that requires consequences which are at logically inconsistent with the purpose of the clause. The clause itself demands a broader reading of "public use." That is proper textualism.

-----------

Claiming that any action is a use, destroys the Framers' underlying reason for choosing the word "use" in the text. Use implies an ultimate purpose or status of the object (property in the takings case), whereas action (at least in the context of a taking) implies a proximate or mediative activity. Moreover, the claim that any act of the government is "public" when taken in conjuction with the claim that any action is a use, renders the phrase "public use" entirely superfluous as the Constitution is ennumerating and delimiting the actions of the government. Thus, the takings Clause would be reduced to "Nor shall private property be taken, without just compensation."

Given the reduced text, one sees that any taking requires just compensation in a textualist reading of the reduced text, answering Orin's question. However, the reduced text is not what the Framers wrote.

Either the entire text has meaning, or there is no textualism

-------

This is not any textualism that I have studied. Your entire argument presupposes that the Framers crafted a perfect document, considering every possible outcome of that language. That foundation rests on fantasy.

It is counterproductive to the purpose of the clause to read "public use" too narrowly. Just because there is a more perfect, simpler wording does not exclude the interpretation I have posited. Textualism doesn't assume the text is perfect. The reason why they wrote "public use" is because they probably believed that was the only conceivable reason why government would ever appropriate private property. Their inability to perfectly craft a clause for application to new circumstances does not rob it of its potency. Moreover, it is absurd to argue that there is no "public use" when the government seeks to garner some benefit--even if it is only a benefit to politicians. If the government is only selling the land for development, hoping to gain additional tax revenue, the government is still using its power to effect a public purpose. It is using that land, and its powers, to further its purposes. That is use in my view, even if it is less "use" than other scenarios. Just because private companies are involved doesn't eliminate the essential public character of the scenario we are discussing.

The caricature of textualism found in this discussion has a purpose. Its enemies seek to paint it as useless and unpracticable. It's probably wise to allow the "self-described" textualists to answer the question. It's also important to note the difference in approach to constitutional interpretation compared to that which is applied to ordinary statutes.
2.24.2005 3:02pm
RWS:
Hayek hit the nail on the head. As applied to the federal government, Am. V can easily be read in straightforward textualist fashion... though Juddy1's point that unwritten natural law coexisted with the Constitution and common law principles at the time of the framing is a good one.

The Fourteenth Amendment was framed in the full flowering of the Romantic time period when the notion of literal textualism would have been considered a pretty outmoded way of thinking in many respects by many people, especially the Republicans who just won a pretty romantic though bloody war on the almost metaphysical idea of the oneness of the Union. The 14th was almost poetically short. The idea that one can rigidly apply the text of the Bill of Rights to a different set of sovereigns with different powers through a text that did not mention the Bill by name would be very alien to a historically informed understanding of that amendment.

The nineteenth century was an intellectually unusual time period. Like it, hate it, but that's what the 14th Amendment is.
2.24.2005 4:22pm
Sebastian Holsclaw (mail) (www):
"Isn't there any room for common sense in the textualist's interpretation?"

Absolutely. It is almost certain that the text as understood by the framers would not allow for taking for private reasons at all. The common sense understanding of the phrase at the time is the understanding a textualist is supposed to use.
2.25.2005 3:57am
David Lundeen (mail):
Hopefully this won't be too repetitive--I haven't read all comments in detail, but my Ctrl-F on "incorporation" didn't pick up the point I wanted to make:

It's an enumerated powers issue as well as the text of the 5th Amendment. There's no general Congressional power (set aside wartime/emergency issues), except on a broad understanding of the Commerce Clause, to take private property for private use. The 5th sets limits and conditions on the ability of Congress to take for public use.

Along comes the 14th Amendment and the incorporation doctrine. So now the states can't take for public use without compensation either. BUT-we don't have any case law "incorporating" the lack of the power of Congress to take for private use. Follow me? So on a textualist, literalist or even structuralist reading, Orin is right--nothing in the federal Constitution to my knowledge prevents states from taking for private use.

Many people who read this blog will find this insensible as a policy matter, as do I. I think it a fair extension of the concept of incorporation to in certain cases allow it to sweep in Bill of Rights-related limitations on the power of Congress and apply them against the states. This will conflict in some cases with the traditional notion of state police power. But what I propose is, in conjunction with the incorporation of the 5th Amendment, we view Congress's inability to take for private use as applicable against the states as well. Akhil Amar proposed incorporating other non Bill of Rights parts of the Constitution, such as the habeas corpus clause, in his 1998 book the Bill of Rights. He or other scholars may also have written about the specific point I just made, so I'm not sure if it's original.
2.25.2005 9:52am
David Lundeen (mail):
One more point. I've now read some other posts, and people have sort of touched on this issue. In Amar's book he makes the point that incorporation more smoothly works with the privileges or immunities clause of the 14th Amendment than the due process clause. Other people have alluded to the sometimes loose process/substantive right distinction. Amar's well-researched and argued point, the anti-Reconstructionist packed Slaughterhouse Cases Court notwithstanding, is that the substantive rights in Article I or the Bill of Rights should apply against state action as privileges or immunities of citizens of the United States that no State shall deny. It would require the overruling of several precedents, but there's the case for it.
2.25.2005 10:07am
RWS:
I think that the Supreme Court and most scholars will recognize that incorporation via the Due Process clause of the 14th is just a ham-handed way to do what should have originally been done with the Privileges or Immunities Clause way back in the Slaughterhouse Cases days. Justice Thomas and others have noted this historical curiosity.

Regardless, incorporation using substantive Due Process does not really pose terribly great problems as opposed to using the PIC. It's just a quirk.

I think that a textualist could plausibly state that just compensation is required for takings for public use, and that the state is allowed to decide what a public use is within its enumerated powers. For the federal government, Art. I, s. 8 powers are the public uses, and nothing much else is authorized.

For a state, public uses might include things such as taking land for redistribution such as the one at issue in this case. People have the right to pick the state they want to live in, and the state has greater freedom to decide what is and is not a state power and a property right.

The issue therefore turns on state constitutional law. North Carolina, where I am from, for example, has strong limitations on private emoluments and strong definitions of private property. Good, I choose to stay a citizen of NC.
2.25.2005 11:20am
Eric Rasmusen (mail) (www):
I have a rather different take.
Orin Kerr wonder whether any
textualist
does read it that way. As it happens, we were discussing that very point
yesterday in the Indiana Law and Econ lunch and I, and
Mike Alexeev I think, were indeed reading it that way.



Why would we do that? Well, why not? If courts read the clause literally, that
would not necessarily result in governments or private people taking private
property for their own use. States could still have laws against theft by
individuals and by government. The Federal Constitution does not have to do all
the work of government. Indeed, as far as the federal courts are concerned,
burglary is not a crime. It is only a crime in state courts; there is no federal
law against it.



Thus, the fact that the U.S. Constitution does not criminalize private
takings for private use is not a problem. Nor is it outrageous that it does not
prohibit public takings for private use. First, one might argue that such
takings are beyond the scope of the police power, as not protecting (except in
special cases) "health, safety, welfare and morals". Second, just because a
state government *could* do it doesn't mean that it will. That is up to the
political process, and except in unusual cases that process will prevent such
takings.



Why, then, have a Takings Clause for takings for *public* use? Maybe it is
not all that important, actually. But there actually is a reason why government
takings for public use is a greater threat than takings for private use: the
very fact that taking for private use is scandalous. Governments frequently
have good reasons for takings for public use, so such a taking will not per se
be viewed as suspicious by public opinion. In every such taking, however, the
government has a temptation to underpay, to be able to spend the cash savings on
other things. It is therefore useful to have the courts keep an eye on the
executive and legislative branches.



In contrast, if the government takes property to give to a private person,
voters will immediately be suspicious. With a spotlight on the transaction, the
politicians have to do a lot of explaining, and this will not be a clever way
to reward their friends or to solicit bribes.



In fact, the best thing might be to have a private takings clause like this:





"Nor shall private property be taken for private use, unless the property
owner is given no compensation





Without this perverse clause in place, the politician may be able to get away
with taking property from owner Smith to give to friend Jones, because he can
bribe Smith with the compensation to keep quiet, and maybe other people will
not notice.
With the perverse clause in place, the politician will have to be extremely
careful when he takes property from Smith and gives it to Jones. Smith will
complain loudly and make whatever allegations of bribery, corruption,
favoritism, and discrimination he can come up with. The politician will have to
respond with why the transfer is good for public policy, and the resulting
adversary process will protect the voters.
2.26.2005 4:42pm
aslanfan (mail):
Early treatises observed that the text of the Just Compensation Clause does ont impose any limitation other than just compensation. See John Lewis, A Treatise on the Law of Eminent Domain ii (1888). Professor Harrington has a nice treatment of the issue in Public Use and the Original Meaning of the So-Called Takings Clause, 53 Hastings L. J. 1245 (2002).
2.27.2005 9:23am