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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.

swg:
I just read through this set of postings (very interesting, thanks), and I think I've fallen on Ilya's side. I guess I don't understand this argument:

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.

It doesn't seem odd to me at all. What precedent or rule of constitutional interpretation would make it odd? It doesn't introduce any real conflict in purpose, for instance, or change the meaning of the fourth amendment. If this is right, then the "limitation" is not "implicit" - the words "public use" are right there, and there's no good textual reason to think that a taking for a criminal case is not for a public use.
5.3.2008 4:27am
theobromophile (www):
What precedent or rule of constitutional interpretation would make it odd?

Perhaps: clauses should not be interpreted so as to be redundant. The argument, as I understand it: the Fourth Amendment applies to criminal takings - the takings (temporary or permanent) of people and things for a criminal investigation, while the Fifth Amendment deals with takings for "public use," i.e. civic, not criminal, use. (Correct me if I'm wrong or loopy from exams, but, in the late 18th century, wasn't there civil action against the police officers who would wrongfully enter a house for search and seizure? If that is the case, the Fourth Amendment would seem to limit the ability of private persons, under government auspices, to do certain things, with an associated civil penalty; the Fifth Amendment would directly limit government action and implicate the government fisc for compensation. As such, even if you were to draw a distinction between the Fourth and Fifth for purposes of textual interpretation, it would only go so far as to tell you who may be sued for compensation, not whether or not the property owner is entitled to it.)

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.

As for the first part: will this thread devolve into a question of whether or not the Air Force is constitutional?

Second, and my random question of the day: Wouldn't the "public use" element actually limit the possible takings, not the times in which compensation must be paid? If the government may take for public use, consistent with constitutional principles, there is at least the negative implication that it cannot take property for any other use. It would be strange to interpret that provision to read that only property which is taken for public use must trigger a requirement to compensate the former owner.
5.3.2008 4:46am
jim47:

If the government may take for public use, consistent with constitutional principles, there is at least the negative implication that it cannot take property for any other use.

Indeed. And I suspect that the nature of that negative implication is part of the issue.

If the negative implication is absolute, then only public use takings are permitted; it follows that since seizures of evidence are permitted, that they must be public use takings. If this is true, then Illya's point holds that without exception all public use takings require just compensation. Thus seizures of evidence would require just compensation.

If the negative implication is not absolute, then it is not clear that seizures of evidence are public use takings. To determine whether a seizure of evidence is a public use taking, we must then inquire what the term of art "public use" meant at the founding, and if such seizures fall within its purview. If the term of art does not include seizures of evidence, then no textual provision states that such seizures are governed by the just compensation rule. Without such a textual provision, history suggests that no compensation is required.

My understanding of the term of art is that "public use" is specific enough that it does not logically apply to seizures of evidence.
5.3.2008 6:33am
merevaudevillian:
There's also a parallel with "emergency destruction takings" and the Fifth Amendment. If the Government blows up your house to create a fire break, or to prevent the enemy from gaining access to your goods, or some other such "emergency," the Government need not compensate you as long as it's for the "public good."
5.3.2008 9:42am
SIG357:
I know this won't be a popular idea to bring up to lawyers and law professors, but if we look to what the Framers intended it seems pretty clear that they expected questions of this sort to be decided at the political level, not the judicial one.

Keep in mind that the Bill of Rights was binding on the Federal Government, and only that. If the Sheriff's Dept in Smalltown, MA confiscated property, that was a subject the US Constitution was silent on. The general understanding at the time was that the people in MA would take whatever political action was neccessary in their own eyes, either by amending their own laws or simply by electing a new Sheriff.

As for property in Smalltown being taken by a body like the DEA, there is nothing in the US Constitution which permits such an entity to exist.

The framers never intended for the Federal Government or the judiciary to have the scope of power they now possess. That makes a narrowly focused examination of a portion of the text they wrote a slightly disingenious exercise, regardless of whether it's from a textualist or original intent standpoint.
5.3.2008 11:36am
loki13 (mail):
When all you have is a hammer, every problem begins to look like a nail. I think that Ilya, with his decided emphasis on takings, has gone a little too far (sort of like when a Law &Econ. judge uses the analysis in a completely inappropriate arena). Sometimes, a novel theory takes us by surprise because it is so well backed up that it forces us to look at something anew (see the recent article on Title of Nobility and legacy admissions with the Society of Cinncinatus as a backdrop). Other times, it can be seen for the reach that it is. Taken in isolation, perhaps the 5th Am. can be read that way. Put to posit the theory, knowing that it has no historical legitimacy (original expected application either at the passage of the 5th or the 14th) and in the absence of a detailed idea of public use (vis a vis criminal proceedings) seems insane. I understand why Orin is at a loss.
5.3.2008 1:13pm
Flash Gordon (mail):
Original meaning and original intent are not the same thing, are they? It is possible to determine how the textual meaning of the words would have been understood at the time the text was written by consulting historical practices as well as writings using those words in other contexts. It is more difficult to determine a single person's actual intent was, what was in his mind. It is probably impossible to determine what was in the mind of a large group of people such as the drafters and ratifiers of a constitution.

For example, it can be said that the words "Congress shall pass no law abridging freedom of speech" were not understood to mean that there could be no exception, or that all speech was protected, because there were laws at the time the first amendment was written which made exceptions and no one seemed to think those laws had to go. For example, libel laws. Therefore, a reasonable originalist interpretation is that there may be reasonable restrictions of freedom of speech. This is an interpretation that may or may not comport exactly with what was actually intended by one or all of the original drafters.

It seems to me that the original understanding of the words "private property shall not be taken for public use without just compensation" is easier to interpret using a textual originalist approach. The custom of just compensation for the taking of private property for public use was long established before the 5th amendment was written. What were those words understood to mean at that time? Were those words understood differently then than now? Whatever the answer, it can be found.

Ilya wins, in my view.
5.3.2008 2:20pm
GV:
Originalism at its finest. Claim the founders agreed with your policy viewpoint (citations to relevant historical sources optional) and claim victory.

Ilya, under your view of "textualism," must you define words as they were commonly understood at the founding or as they are commonly understood today? And why? And how do you determine the commonly understand meaning of a term?
5.3.2008 2:37pm
stunned:
"I doubt that the framers ever considered the specific problem of takings of the property of innocent people during a criminal investigation."

Do you have a particular reason for thinking that? If you mentioned it I didn't notice.
5.3.2008 4:04pm
stunned:
"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."

These are both examples of things they could not have considered because they hadn't been invented yet. It was indeed possible -- and surely probable -- that innocent third parties' property had been seized for criminal investigations when the Constitution was written.
5.3.2008 4:07pm
alias:
The CAFC's Acadia case, on which the Amerisource panel relied, goes through a few more of the Supreme Court's precedents on Takings in this context (including Bennis, but some others as well). That one may be worth a look.
5.3.2008 7:03pm
George Weiss (mail) (www):
It seems to me an issue of first impression, and neither Berman v. Parker and Warden v. Hayden together don't foreclose the issue.
Berman tells us the 5th amendment isn't violated with forfeiture of an innocent co-owner's interest in the intrumentaliteis of a crime.
Warden tells us the 4th isn't violated when a warrant is given for 'mere evidence' as opposed to instrumentalities or fruits of a crime.
However, It doesn't necessarily follow that the 5th isn't violated when its 'mere evidence.'
Nor does the theory that the fourth and fifth are separate limitations on the same activity of criminal seizure (Ilya's theory) necessarily cause these holdings to combine. If you agree with Ilya that the 5th is an extra limitation on the 4th, it certainly may be that they combine-but not necessarily.
So it comes down to whether you look at the fourth as the only restriction on seizure, or the 5th as an additional hurdle-and there is no real case exactly on point.
It's interesting that nowhere in the dicta of Bennis-or the cases it relies upon concerning forfeiture of the interests of innocent parties as a result of a related criminal case does the court draw on any originalist or textual read of the 4th and fifth to say that the 5th simply does not apply to criminal takings. Rather it seems to analyze the history and policy of forfeiture as applied to the common law, its predecessors, and the 5th. See e.g, Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), J. W. Goldsmith, Jr. Grant Co. v. United States, 254 U.S. 505 (1921), Van Oster v. Kansas, 272 U.S. 465 (1926).
5.4.2008 2:02am
George Weiss (mail) (www):
*arrg-bennis=berman*
5.4.2008 2:03am