Why the Takings Clause Requires Compensation for Government Takings of the Property of Innocent People during Criminal Investigations:

I think my debate with Orin over the Takings Clause and seizures of property during criminal investigations is likely to enter the realm of diminishing returns soon, if it hasn't already. So in this post I will merely recap my key points and respond briefly to Orin's latest post.

I argued in my original post that the Takings Clause, which requires "just compensation" for "takings" of "private property" for "public use" requires compensation for the taking of innocent persons' property during a criminal investigation. The textual basis for this is very simple: that the Fifth Amendment does not distinguish between takings of property for use in a criminal investigation and takings for other public uses. The text simply states: "nor shall private property be taken for public use, without just compensation." There is no exception for takings related to criminal investigations or any other takings of any kind. Thus, it is reasonable and natural to assume that the text requires compensation for all takings alike, whether they occur during criminal investigations or not. Orin then argued that this interpretation of the Fifth Amendment is inconsistent with the text of the Fourth Amendment, and I tried to explain why there is no contradiction: the Fourth and Fifth Amendment both protect property rights, but in different ways and against different threats.

Now, Orin claims that my latest post merely shows that it is possible to interpret the Fifth Amendment as requiring the government to compensate innocent property owners for takings that occur during criminal investigations, not that such an interpretation is required. I'm not sure I understand his post correctly. But it seems to me that it conflates my response to his Fourth Amendment point with the whole of my argument. If I am correct in that latest post in arguing that there is no contradiction between my interpretation of the Fifth Amendment and the functions of the Fourth Amendment, then my textualist approach to the Takings Clause stands (at least against Orin's objections): it is logical and natural to interpret it as applying to all takings of private property for public use. There is no implicit, nontextual exception for takings that occur during criminal investigations. Thus, compensation for such takings is not only permitted but required by the text. My core argument is simply that the Takings Clause says what it means and means what it says. It applies to all takings of private property for public use, not just some subset of them.

Orin also interprets my statement that the framers did not "intend" my reading as suggesting that it is merely a possible reading rather than the correct one. However, I have from the outset stated that my argument is textualist, not originalist. The sole originalist point I sought to make was that there is no compelling originalist evidence against my interpretation. That point is merely a negative defense against Orin's claim that originalism counts against my argument. My affirmative argument is textual, not originalist, and I respectfully suggest that Orin hasn't - at least so far - succeeded in refuting it.

To put the point another way, I doubt that the framers ever considered the specific problem of takings of the property of innocent people during a criminal investigation. At the same time, however, the text they enacted is clearly broad enough to cover this situation, just as it is broad enough to cover many other types of takings that were rare or even completely unknown in their day. Consider, for example, the taking of property for the purpose of building an airport. Similarly, when they drafted the First Amendment, the Framers could not and did not consider the regulation of speech on television and radio. But that does not mean that the Free Speech Clause can't apply to regulation of speech on broadcast media.