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Constitutionally Permitted Versus Constitutionally Required -- A Response to Ilya:
In his latest comment, Ilya offers a way to reconcile the text and function of the Fourth and FIfth Amendments in a way that allow the Takings Clause to be used in crimimal investigations:
To my mind, there is no tension between the Fourth Amendment and my interpretation of the Takings Clause. Both protect property rights to some degree, but in different ways and against different threats. The Fourth Amendment forbids "unreasonable" searches and seizures even if compensation is paid. However, the text also assumes that there are at least some "reasonable" seizures of the property of innocent people that are not forbidden. In such cases, property rights are protected (to some degree) by the Fifth Amendment's requirement of "just compensation." Thus, the Fifth Amendment protects innocent property owners in precisely those cases where the Fourth does not.
  This is an interesting theory, but it seems that we have shifted ground a bit. Instead of arguing that the text and text alone affirmatively mandates this reading — after all, the text is the law — Ilya now appears to be arguing that it's possible to interpret the text in a way that permits this reading. As he puts it, he "merely suggest[s] that [the Framers's written text] did not intend to preclude" his approach. But that isn't textualism: It's a policy argument made in a zone of textual ambiguity. And that's the problem, I think. It seems to me that Ilya's argument is a lawyerly effort to try to engraft a libertarian theory onto the Constitution rather than a straight textual or originalist account of what the Constitution affirmatively commands.
jim47:
As much as I dislike the result, I gotta fall on Orin's side. The fifth amendment just strikes me as carving out a specific power of seizure rather than qualifying an existing government power.
5.3.2008 2:41am
Ilya Somin:
As much as I dislike the result, I gotta fall on Orin's side. The fifth amendment just strikes me as carving out a specific power of seizure rather than qualifying an existing government power.

Neither the Takings Clause nor any other part of the Bill of Rights grant the government any new powers. All of them limit existing powers by forbidding their exercise in certain situations. In the case of the Takings Clause, the government is forbidden to take property for a public use without paying "just compensation."
5.3.2008 3:46am
jim47:

Neither the Takings Clause nor any other part of the Bill of Rights grant the government any new powers.


That seems like an oversimplification. Much of the Bill of Rights was seen as being declarative, and in its clarifying capacity, it does add to the list of enumerated powers, even though it does not add to the total number of powers. Linguistically, it makes perfect sense to refer to those powers as being "carved out" in the amendments. I grant, however, that my sentence was inartfully worded.

I meant to say that the amendment strikes me as explicitly enumerating the specific but previously unenumerated power of eminent domain in a way that defines and constrains that power, making its (very possibly pre-existing) limitations clear; rather than the amendment creating a broad qualification directed at the federal government's undifferentiated powers, which would thus apply against specifically differentiable powers other than eminent domain, such as common law powers like the ability to issue warrants for search and seizure.

That means I take issue with the idea that the best conception of the Takings clause imagines that prior to the passage of the amendment the federal government was seen as clearly having a general power to seize property without compensation and that the ratification of the fifth amendment abrogated that power. If there is evidence to the contrary, I await being proved wrong.
5.3.2008 6:04am
Fub:
Ilya Somin wrote at 5.3.2008 2:46am:
Neither the Takings Clause nor any other part of the Bill of Rights grant the government any new powers. All of them limit existing powers by forbidding their exercise in certain situations. In the case of the Takings Clause, the government is forbidden to take property for a public use without paying "just compensation."
IANA historian, scholar or academic, but as a layman w.r.t. scholastic professions, this strikes me as the more correct view. But I would rephrase "existing powers" to "existing powers or powers expected to be claimed".

In that sense, regardless whether the founders viewed government's power to seize as existing or implicit, or merely likely to be claimed in the future, the more important fact is that the amendment sought to expressly limit that power in any case.
5.3.2008 12:26pm