Posted by Orin Kerr:
Textualism and the Takings Clause:
I don't know much at all about the Takings Clause, so I hope the
Takings Clause experts out there can help me (and inform the VC's
readers) about a very basic question I have concerning the issues
raised in the Kelo v. City of New London case. In [1]Steve
Bainbridge's post linked to by Randy below, Steve notes the text of
the Takings Clause:
Nor shall private property be taken for public use, without just
compensation.
Steve then adds:
Note that the Takings Clause has two independent requirements: (1)
just compensation must be paid; (2) the property must be taken for
a "public use." This second requirement means that the government
may not take away your property to give it to some other private
individual (or company) who will then devote it to their own
personal or business use.
I have no expertise at all in the Takings Clause, but my understanding
is that this is an accurate summary of exsiting Supreme Court
doctrine. As best I recall, the Supreme Court has interpreted the
Takings Clause this way for a long time.
At the same time, this isn't what the text of the Takings Clause
actually says. The text of the clause says that if private property is
taken for public use, then just compensation must be paid. The
Constitutional text doesn't address takings for private use at all.
Not only would such a taking seem to be allowed by default, but the
Constitutional text doesn't even seem to require the government to pay
just compensation for it. The text doesn't say, "Private property
shall not be taken for private use, nor shall private property be
taken for public use without just compensation." It only says "Nor
shall private property be taken for public use, without just
compensation." Obviously there are good policy reasons why we might
not want the Court to read the text this way, and there are also
reasons why someone might or might not be a textualist. Still, if
you're a textualist it seems that you're kinda stuck with that
reading.
My question is, what am I missing? How can a textualist agree with
the Court's current reading of the Takings clause? My very quick look
at the cases suggests that the Court picked up the "public use"
element as a requirement for a taking back in the days when the
Justices limited the legislature's authority to the "police power";
the idea is that a taking has to be a public use for it to fall within
the police power. But the "police power" limitation wasn't rooted in
the text of the Constitution, either. It seems to me that a good
textualist would say that either the taking in Kelo was for "public
use" and required comepnsation or was for private use and doesn't
require compensation at all. Oddly, though, I can't seem to find any
self-described textualists who interpret the Takings clause this way.
I have enabled comments.
References
1. http://www.professorbainbridge.com/2005/02/will_leviathan_.html
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