More on the Takings Clause and Criminal Procedure:
In making his argument for using the Takings Clause to provide compensation for investigative seizures beyond the return of the physical property itsef, Ilya writes:
Since I am more a textualist than an originalist, I think it highly significant that the text of the Fifth Amendment does not distinguish between the taking of private property for the "public use" of investigating crime and other kinds of takings. All require the payment of "just compensation." Since there were no professional police forces or extensive government evidence-gathering in the 1780s, the Founders may never have been confronted with a situation like that in AmeriSource; as a result we may never be able to discover their specific opinions on the matter (if indeed they had any). However, the text of the Fifth Amendment is more than broad enough to cover these cases. And it is the text, not the subjective intentions of the Framers, which is the law.
  I find this argument weak on both textualist and originalist grounds. Let's start with the textualist claim. There are two paragraphs of text here, the Fourth and the Fifth Amendments:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, 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.
  Ilya writes that he finds it "highly significant that the text of the Fifth Amendment does not distinguish between the taking of private property for the 'public use' of investigating crime and other kinds of takings." But I don't think the failure to make that distinction can fairly be read as including both categories instead of excluding one. From a textualist standpoint, the Fourth Amendment has a very explicit regulation on searches and seizures; its language was explicitly addressed to the rules that govern the "seizing" of "effects."

  Given this language, it seems odd to construe the one phrase at the very end of the Fifth Amendment — "nor shall private property be taken for public use, without just compensation" — as implicitly providing another limitation of "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" found in the Fourth Amendment. Further, the word "use" implies action, not just the passive act of storing something away over time (which, on the other hand, is clearly a seizure). Given that, I just don't think Ilya's reading is a natural one.

  Second, Ilya's speculation that the Framers didn't experience seizures of property owned by innocent third parties seems off the mark, too. One of the more prominent uses of warrants at English common law was to retrieve stolen goods; its use was discussed in Entick v. Carrington, 19 Howell's State Trials (1765), the English decision that more than any other case inspired the passage of the Fourth Amendment. In these cases, the legitimate owner of the stolen goods would complain to the local magistrate that his goods had been stolen; the magistrate would issue a warrant allowing the government officials to go and retrieve the goods from the person who stole them so they could ultimately be returned to the property owner.

  During these cases, the government would have control over the property for a period of time, and the property owner was ultimately entitled to return of the original property. But I don't know of any instances in which decreases in value of the property obtained pursuant to the warrant due to the passage of time or the resulting inconvenience was referenced as some sort of "taking" requiring "just compensation." As best I can tell, such matters were considered matters of the common law power to conduct reasonable searches and seizures, not takings.

  But wait, you're thinking: the government is acting in a very different capacity when it is retrieving stolen goods than when it is collecting evidence that just happens to belong to a third party. Perhaps. But if you think that, then you should blame the Warren Court for overruling the common law "mere evidence rule" in Warden v. Hayden. The Fourth Amendment's prohibition on warrants for mere evidence — as opposed to contraband or fruits of crime — originally acted to avoid fact patterns like than in Amerisource. If Warden v. Hayden was wrongly decided, that is a matter for the Fourth Amendment to fix rather than the Takings Clause.
Isn't Warden great for Illya's argument? It allows him to explain the textual awkwardness of his reading by saying that Warden v. Hayden created a *new* kind of problem, one that would have seemed legally impossible to the framers. Pre-Warden, this couldn't have come up, because things the owner had no right to possess--contraband, stolen goods, the instrumentalities of crimes--didn't require compensation.

Moreover, it seems like you could agree with Illya without wanting to overturn Warden, because Illya's argument is really orthogonal to Warden.

The Fourth Amendment balances "privacy" against the government's interest in enforcing the laws. The 5th Amendment protects your economic stake in your property, not your privacy. You could agree with the balance Warden struck, between privacy and law enforcement, while agreeing with Illya that the novel 5th Amendment issue Warden created ought to be resolved in favor of the property owner.
5.2.2008 5:12pm

If you're an advocate trying to defend Ilya's position, I think you would have to make that argument. But it's a weird argument to make: The Fourth Amendment was violated before Warden v. Hayden, and yet it never occurred to anyone to make a Takings Claim to do more than get the property back.

More broadly, there are a lot of "living Constitution" arguments you could make to get to the result: Just do the usual trick of raising the level of abstraction to a general policy result, and then "implement" the policy with the new rule that is different from the old one. But I think it's quite hard to make these claims from an originalist or textualist perspective.
5.2.2008 5:34pm
Dilan Esper (mail) (www):
By the way, though Prof. Kerr is perfectly within his rights to call Warden a "Warren Court" decision, it's worth noting that Warren himself joined Fortas' concurrence which argued for keeping the "mere evidence" rule.
5.2.2008 8:05pm
Orin, I'm a bit confused. The common law you describe ("power to conduct reasonable searches and seizures") is not the common law described in Davies's articles that you had previously mentioned. Likewise, you wrote in the earlier thread to this topic that the Fourth Amendment was intended to govern all searches and seizures, which is also contrary to Davies's research. Do you think Davies's article is wrong and if so, what authority would you point to that would support the idea that the common law authorized all reasonable searches and seizures?

(As an aside, I asked a question in your previous thread regarding this topic about trespass, which you responded to. I realized after the fact that I was laboring under a false understanding of what was meant by damage done to an innocent third party.)
5.2.2008 8:13pm
Excellent point, Dilan -- thanks for making it.
5.2.2008 8:13pm

Sorry for the possibly loose language; I didn't mean to wade into the debate on the meaning of reasonableness at common law, or on the technical question of what a search or seizure. Rather, I was just pointing out that these issues came up at the time of the framing and were not understood as takings questions but rather as questions about search and seizure law.
5.2.2008 8:18pm
DavidBernstein (mail):
I don't see the conflict. The Fourth Amendment bans unreasonable searches and seizures. Under the Fifth Amendment, even reasonable searches and seizures may still be takings requiring just compensation. Of course, seizing contraband would not be subject to a just compensation requirement, but I don't see why the Fourth Amendment in any way precludes a just compensation requirement for the "reasonable" seizure of a perfectly innocent party's property for ancillary purposes.
5.2.2008 11:56pm
DavidBernstein (mail):
Oh, and as for Entick, if the magistrate hadn't acted on his complaint, he would never have gotten the property back at all, so it's hard to see how getting it back a bit later constitutes a "taking"; if anything, the use of police resources to retrieve property and then punish the perp (preventing a recurrence and discouraging future thefts) is a "giving."
5.2.2008 11:59pm

I recognize that you are reasoning from first principles, but do you know of any authority -- cases, commentary, scholarship, original understanding, anything -- that suggests that your perceived lack of conflict is constitutionally correct?
5.3.2008 1:01am