Ilya Somin:

I'm delighted to welcome Ilya Somin as a Volokh Conspiracy guest-blogger for this week and next. Ilya teaches at George Mason law school, and writes about property rights, federalism, judicial review, and more. He's also a fellow Russkie, which just shows how many conspiracies The Volokh Conspiracy overlaps with.

Good. We can expect more GMU basketball, then. Zywicki has been carrying the water by himself too long. (P.S. I only read the Conspiracy for the sports coverage.)

3.27.2006 9:44am
dweeb2 (mail):

You're being unfair: Bernstein has blogged about it, too.
3.27.2006 10:39am
GMUSL 2L (mail):
Somin is so nice! I really like him. He just comes across as such an earnest and genuine guy.
3.27.2006 11:00am
Dr. Grammar (mail):
"the The Volokh Conspiracy overlaps with"

A dangling preposition is a terrible thing to behold.
3.27.2006 11:03am
Mike BUSL07 (mail):
As a fellow Russian, I welcome Comrade Somin on behalf of the VC's Russian Immigrant Libertarian BUSL readership, (me).
3.27.2006 11:04am
Eric Muller (www):
Eugene, it would be a real coup if you could get a member of the George Mason basketball team to guest-blog.
3.27.2006 11:11am
Kovarsky (mail):
Jerry Smith clerk, knows his baseball. Works for me.

The dangling prepositions are fine with me. I'm ok with split infinitives too. They strike me as silly aesthetic rules.
3.27.2006 11:13am
BobH (mail):
"He's also a fellow Russkie, which just shows how many conspiracies The Volokh Conspiracy overlaps with."

Dr. Grammar, just how would you recast the sentence to eliminate the preposition at the end? "He's also a fellow Russkie, which just shows how many conspiracies there are with which The Volokh Conspiracy overlaps"? Yeah, THAT'd be better.
3.27.2006 11:19am
Anderson (mail) (www):
So, what do Russkies old &new think about Justice
Scalia's big mouth
3.27.2006 11:23am
He's also a fellow Russkie, which just shows how many conspiracies The Volokh Conspiracy overlaps with.

And a Mason, of sorts!
3.27.2006 12:01pm
HLSbertarian (mail):
BobH said: "He's also a fellow Russkie, which just shows how many conspiracies The Volokh Conspiracy overlaps with."

Dr. Grammar, just how would you recast the sentence to eliminate the preposition at the end? "He's also a fellow Russkie, which just shows how many conspiracies there are with which The Volokh Conspiracy overlaps"? Yeah, THAT'd be better.

"He's also a fellow Russkie, which just shows with how many conspiracies The Volokh Conspiracy overlaps."

Some people are into this stuff. Let them have their fun.
3.27.2006 12:11pm
HLSbertarian (mail):
PS: Welcome, Prof. Somin. Always glad to see more accomplished scholars from the Russian wing of the legal academy.
3.27.2006 12:13pm
Dr. Grammar - the verboten-ness of ending a sentence with a preposition is a Latin rule; English is more flexible on the subject. Perhaps you are confusing it with the dangling participle, which can be simultaneously confusing and amusing.

Dweeb2 - you are correct, Bernstein has been writing on sports, and I apologize to everyone except Duke. Perhaps Dr. Somin can opine on the legal aspects of Eastern European elite atheletes jumping to North American leagues. Seems like a good property rights issue.
3.27.2006 12:29pm
BobH (mail):
HLSbertarian says: "Some people are into this stuff. Let them have their fun."

No! There are some things, up with which I will not put!
3.27.2006 12:33pm
Walt Quist (mail):
We are one game away from an epic showdown between GMU and UCLA. This looks to be a clash between the GMU and UCLA branch's of the Volokh conspiracy.
3.27.2006 12:57pm
A preposition at the end of a sentence is not something I would up with put.
3.27.2006 1:57pm
Marcus1 (mail) (www):
Welcome. Are there specific topics in mind, I presume? I'd love to hear about the textual basis for the public use requirement, if you take requests. As in, how and when the word "except" for public use got inserted, and on what originalist or other basis. Not a pressing issue, I'm sure, but I thought I'd ask, since I've never found an actual explanation.
So, what do Russkies old &new think about Justice Scalia's big mouth?
I'm also curious what Prof. Zywicki thinks, after his insinuations (for lack of a better word) re: Ginsburg's reliance on her personal religious views. Seems to me that Scalia here went a whole lot further.
3.27.2006 2:18pm
Corporate Law Drudge (mail):
What's with the "with", anyway?

He's also a fellow Russkie, which just shows how many conspiracies there are with [that] The Volokh Conspiracy overlaps"?
3.27.2006 2:50pm
Kovarsky (mail):
colorless green ideas sleep furiously.
3.27.2006 3:03pm
Катя (mail):
Читая вышеобсужденные грамматические комментарии, у меня запотели очки.

Подпись: Антоша Ч.
3.27.2006 11:43pm
Ilya Somin:
In answer to Marcus1's question about the textual basis of the Public Use requirement that private property cannot be taken for transfer to another private person, there's a good discussion in Justice Thomas' dissent in Kelo. See Kelo v. City of New London, 125 S.Ct. 2655, 2678-79 (2005) (Thomas, J., dissenting). In addition to the points Thomas makes, I would also argue that, under the Article I of the Constitution, the federal governemnt lacks any enumerated power to make private-to-private condemnations. As for the states, at the time of the Fourteenth Amendment, the incorporation of the Takings Clause occurred at a time when "public use" was widely understood to forbid private-to-private takings.
3.28.2006 4:37am
Marcus1 (mail) (www):
Prof. Somin,

Thanks very much for your response. I think Thomas actually skips over the question of how "public use" is a requirement in the first place -- the obvious question, I think, to anyone who looks at the plain language of the clause -- and proceeds simply to argue his strict definition for the words "public use." Essentially, he puts the cart before the horse, which some speculate is why Scalia didn't join his opinion.

My thought is that this strict construction is particularly strange when considering that the words "public use" weren't actually written as a restriction on government power. It seems to amount to "strictly construing" a penumbra, which seems rather unconventional.

I was interested to find that Jonathan Adler at the Corner argued this position in a series of posts following Kelo, here (you may be aware that direct discussion of the issue is quite sparse). His general argument:
Justice Thomas marshalls just about all of the historical evidence that is available for his position, but it's not enough to carry the day. Thomas's attempts to distinguish Mill Acts and Private Road Acts -- both of which are strong evidence of how the founders viewed the power of eminent domain -- are unpersuasive. Others who've done the historical research come to the same unfortunate conclusion: The originalist case for a robust "public use" requirement is fairly weak. I'd like to be persuaded otherwise, and would welcome further academic research that supports the Thomas position. As yet, I haven't seen it.
I generally agree.

Your two arguments are interesting, though, and I'll have to check them out in more detail. I'm not against your idea regarding a general limitation of government power, but of course, it would be a rather marked departure from the Supreme Court's current analysis. Yet, I'm still not sure how that gets to Thomas' strict construction of "public use," as opposed to the liberals' acceptance of a more generalized "public purpose," which would seem to pass a pure Article I standard.

As to the incorporation argument, I have to say that's new to me. I wonder, has the "public use requirement" specifically been incorporated? I'll have to check it out. I'm still inclined to say it's a rather abstract argument, though, for getting to the strict public use requirement.

And wouldn't the real question be when the 14th Amendment was actually ratified? That, Wikipedia tells me, was in 1868, at which time I understand the public use requirement was analyzed under the due process clause, if at all.

Thanks again in any case for your response. I think it's a much underexamined issue.
3.28.2006 10:46am
Ilya Somin:
In brief response, on the public use issue:

1. Thomas specifically explains why public use is a requirement from a textual point of view, at the pincite I indicated. He does not just provide a definition of "public use," but gives 2-3 textual arguments as to why it should be read as a limitation in the first place.

2. I have seen Jonathan Adler's post, but I disagree with it. The Mill Acts are easily distinguishable because mills in the 19th century were essentially public utilities to which, in most states, there was a legal right of access. Takings for private roads were not, as far as I know, permitted in most states.

3. Regarding Article I, there is no enumerated power for the feds to condemn for all "public purpose," nor can such condemnations be justified by implication, in my view.

4. Finally, the takings clause was incorporated along with the rest of the Bill of Rights in 1868. As Akhil Amar has shown in his book The Bill of Rights, this was one of the main purposes of the Fourteenth Amendment. At the time, language similar to the "Public Use Clause" in state constitutions was almost universally understood to impose limits on the range of permissible takings, and to forbid most private-to-private condemnations. So too with the Fifth Amendment as applied to the states at the time.
3.28.2006 11:54pm
Marcus1 (mail) (www):
Prof. Somin,

Thanks again. My own briefened if not brief response:

1. You're right, Thomas does offer an argument. I think the argument is demonstrably false, however. First, the words "public use" don't have to be surplusage. It could both limit or broaden the meaning of the word "taken," in different ways. It could, for example, indicate that destruction of property for public purpose, as opposed to a taking for public use, does not require compensation. This has been argued by Jed Rubenfeld at Yale. Or, in my view, it could actually broaden the meaning of "taken," to include appropriations that do not actually entirely seize the land (regulatory takings or mandating a thoroughfare on private property, for instance). While that's not a "taking," per se (they don't actually take it from you), it more clearly amounts to a taking "for public use" (they do take it for that purpose) and thus should trigger the just compensation requirement. I think this is consistent with both the language and the idea that the framers wanted a broad just compensation requirement. And when we're deciding what a group of people meant, I think it's about as close as we're going to get.

Second, the result does not have to be uncompensated private takings. This suggestion is based on the strange assumption that the framers contemplated private government action. The obvious reading, contrary to Thomas' assertion, is not at all that private takings are impermissible (if they were they'd have used the word "except"!), but that any taking by the government would be considered "for public use," by definition. Thus, any government taking would require just compensation.

This is, in fact, the only remotely plausible reading of the clause. If I'd asked James Madison "Well what about government takings for private use," he may well have said, "Of course, they can't do that." If I asked why, though, he never would have said, "because the just compensation clause prohibits that." He'd have to have pointed to some other clause, as you seem to recognize by your argument based on Article I. Most certainly, he would not have focused on the semantics of the words "public use." If I asked him if the government has to pay when it takes property, however, I think he unequivocally would have said "yes."

Thus, I don't think inventing a public use requirement is necessary either to avoid "surplusage," or to avoid the absurdity of "uncompensated private takings." In fact, I don't think it's even really a textual argument. It's more of a structural argument parading as a textual argument. Or more accurately yet, a structural argument for disregarding the text.

2. Re: Adler and distinguishing private roads. It's not something I've studied, so I'll concede the point. I was just arguing from conservative authority :)

3. Re Article I. Hmm. Well, again, that doesn't sound so much like a "public use requirement," but perhaps more like an "establish post offices requirement." Under a very conservative view of federal power, I suppose urban revitalization doesn't enter the picture. That's not a question of public or private use, though, but of whether there is a specific enumerated power in the Constitution.

Also, as you note, it doesn't explain the application to the states.

4. Ok, so 1868. Well, at that time, the Supreme Court had to my knowledge never referred to a public use requirement emanating from the eminent domain clause. As I understand, they analyzed the limits of eminent domain under the Due Process clause. I get this from O'Connor in Midkiff, citing to the origins of the public use requirement in Missouri Pacific v. Nebraska (1896):
The taking by a state of the private property of one person or corporation, without the owner's consent, for the private use of another, is not due process of law, and is a violation of the fourteenth article of amendment of the constitution of the United States." 164 U.S. 403
As to "public use" language in State constitutions, I'm afraid it's something I can't knowledgably discuss, but I'm admitedly a bit skeptical. How similar are they really? And was this phrase really considered a limitation on takings that were merely for a public purpose, as opposed to a public use? I'm not a historical expert, but it seems hard to imagine how that issue would even have come up. I'm guessing that the decisions really didn't speak to this issue.

In sum, it's still very hard to see how these arguments support a strict "public use requirement." This last one, in particular, seems to really push the boundries of abstract argumentation. In essence, you seem to be saying that a state cannot use eminent domain for an urban revitalization project, becase the due process clause incorporated the eminent domain clause in 1868, and although our Supreme Court had never acknowedged such a public use requirement at that time, several states had acknowledged their own using similar language, meaning that the Supreme Court really should have recognized it, (or perhaps that that's what the incorporators must have intended to incorporate) and so that right was then incorporated in 1868 despite the fact that it did not yet exist federally.

I'm afraid that along with the other arguments, that just strikes me as too abstract to really pass for a conservative argument. I can't say it explains to me why they didn't just use the word "except." I'm telling you, I think Adler may have been on to something. Thanks again, though, very much, for your response.
3.30.2006 2:34am