Posted by Orin Kerr:
Stuart Buck On Text and Takings:
[1]Stuart Buck responds to my [2]prior post about textualists and the
Takings Clause:
[Kerr's] argument is the equivalent of the following: "The Fifth
Amendment prohibits the government from putting someone in jeopardy
of 'life or limb' twice 'for the same offense.' Granted, this
prohibits the government from prosecuting someone twice for the
same offense, but it doesn't prohibit the government from
prosecuting people for no reason at all. Thus, if you're a
textualist, you have to admit that the 5th Amendment allows the
government to prosecute innocent people willy-nilly."
A few thoughts. First, I should have been clearer in my first post
that I don't think a textualist has to say that a taking for "private
use" does not trigger a right to just compensation. The text does not
compel a distinction between public use and private use; the more
sensible of the available textualist readings is that any government
use is a public use triggering just compensation, and the phrase
"public use" just means "by the government." The part that interests
me is the claim that the government cannot take property for private
use; I find this claim quite appealing, and it may be persuasive based
on the original intent of the Fifth Amendment or (perhaps more likely)
other provisions of the Constitution, but I'm struggling to see it in
the text.
Second, to the extent it matters I don't think Stuart's example
quite proves his point. "Offense" in the Fifth Amendment means
criminal act; the Fifth Amendment prohibits the government from
bringing criminal charges against someone twice for the same criminal
act. If the government started bringing criminal prosecutions against
people for a crime that Stuart would deem "no reason at all," then
this "no reason at all" would be the "offense" for the purposes of the
Fifth Amendment. Alternatively, if the government starting hauling
people to jail outside of the criminal justice system, then that would
be a violation of the Sixth Amendment jury trial right the first time,
not a Double Jeopardy violation the second.
Finally, I realize I am being a bit sloppy by not being explicit
about exactly what version of textualism I have in mind. I am doing
that because I am more interested in exploring the apparent tension
between the text and the intepretations endorsed by many
self-described textualists than in the details of any one approach. If
this strikes readers as hopelessly and even annoyingly academic, well,
perhaps it is.
References
1. http://stuartbuck.blogspot.com/2005/02/takings-clause.html
2. http://volokh.com/archives/archive_2005_02_20-2005_02_26.shtml#1109193529
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