Reading the "Public Use" clause

Ilya Somin isomin at fas.harvard.edu
Thu Jun 23 18:31:57 PDT 2005


This is a fairly common argument against Public Use limitations on
takings, but it has two major shortcomings.

1. Since the federal government is a government of limited powers, the
original understanding was that the government was not granted the power
to make private-to-private transfers. Therefore, there was no need for
"just compensation" in such (expected to be nonexistent) cases.  As
applied to state government takings, this background understanding was
surely transferred to them by the incorporation of the Bill of Rights
under the 14th Amendment, at a time when background commitments to
property rights were even stronger than at the time of the framing.
Because state governments were not believed to have the power to
condemn property for private to private condemnations, it was not
considered necessary to specifically forbid them. This
does not mean, as Mary implies, that under the original meaning, the state
has no power to redistribute wealth, merely that it must do so through the
tax and expenditure system rather than through eminent domain.

2. A reading of the Takings Clause that interprets it as  requiring
compensation only for public takings but not private ones leads to
nonsensical results that are surely contrary to original understanding.
For example, the state could get around the compensation requirement
simply by taking the property and then transferring it to a private party
with the understanding that the new owner will  sell it back to the state
for a nominal  middleman fee.

 Ilya Somin



On Fri, 24 Jun 2005 marty.lederman at comcast.net wrote:

> Well, as long as we're on the subject of plain meaning, or the actual words of the Constitution, it's worth remembering that there is no language in the Fifth Amendment (or anywhere else in the Constitution) that expressly requires that "takings" of property be for a "public use" or a "public purpose."  The Fifth Amendment merely provides that takings that are for public use must be (justly) compensated.  It might be fair to read this language as resting on an assumption that all takings are for public uses (although in that case, why mention "for public use"?); but it's not fair, I think, for a plain-meaning or original-intent constitutionalist [note:  I'm not one] to derive a prohibition on non-public-use takings from the Federal Constitution.
>
> It's notable, in this regard, that Justice O'Connor does not begin with the words of the Constitution, but instead with the famous Calder v. Bull dictum, which "merely" indicates that because it is against "all reason and justice" to take from A and give to B, courts should not presume that legislatures have been given such powers or that legislatures have done any such thing.  Of course, that notion -- that legislatures have not been given the power to effect transfers of property -- has been foreign to our law for well over 100 years, and after the 16th Amendment, it's a fairly ridiculous assumption:  virtually the entirety of the modern, redistributivist state consists of decisions assigning the roles of A and B for purposes of a particular statute.  But even if one agrees with Justice Chase that legislatures have not been afforded the power to effect some sorts of transfers to private parties, isn't that a matter of state law?  Or at the very most (and this is closest t
 o!
>   my view), that as a federal matter it is within the purview of the Due Process Clause, which prohibits the rare "naked transfers" that cannot be explained by any rationale other than the desire to benefit discrete private parties at the expense of others?   That is to say:  the rational basis test should be the standard.
>
> -------------- Original message --------------
>
> > Eugene is correct. I meant to say "public use," but in haste I slipped
> > into the Court's rhetoric of "public purpose."
> >
> > Scott
> >
> >
> > Volokh, Eugene wrote:
> >
> >
> > > How captive we are to Supreme Court rhetoric: Scott writes
> > >about the "public purpose" provision of the Takings Clause, but the
> > >phrase in the Amendment is "public use," and unless I'm mistaken the
> > >*majority* is the one that equates public use and public purpose; the
> > >dissents stress that public use really means (by and large) public use
> > >in the sense of use by the public, and that mere public purpose ought
> > >not be enough.
> > >
> > > I suspect this was just a slip on Scott's part, and I am *not*
> > >trying to use it to argue against Scott's substantive position. But I
> > >wonder whether this slip might reflect the way that the Court's
> > >decision, and legal culture more broadly, can change the words we use
> > >about things -- and thus the way we think about them. All of us have,
> > >I'm sure, heard people talk about something violating "the First
> > >Amendment of the California Constitution" (when they mean the California
> > >Constitution's free speech clause) or "the Freedom of Association
> > >Clause." I've at times said similar things myself. The Court's
> > >decisions don't just affect what we understand the words to mean, but
> > >sometimes actually change our very memory of what the words are.
> > >
> > > Eugene
> > >
> > >> -----Original Message-----
> > >> From: conlawprof-bounces at lists.ucla.edu
> > >> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scott Gerber
> > >> Sent: Thursday, June 23, 2005 4:37 PM
> > >> To: Sanford Levinson
> > >> Cc: Strang, Lee; conlawprof at lists.ucla.edu
> > >> Subject: Re: RE: High court OKs personal property seizures
> > >>
> > >>
> > >> I realize that Sandy is describing more than just me in his post, but
> > >> for me, as a libertarian (rather than the conservative Sandy seems to
> > >> conflate libertarianism with), the decision is terrible because it
> > >> essentially eliminates the "public purpose" provision of the takings
> > >> clause. Justice Thomas made much of this point, too. Almost nothing
> > >> is more important to libertarians than private property rights (just
> > >> ask Richard Epstein), hence my concern. I agree that,
> > >> doctrinally, the
> > >> decision wasn't much of a surprise, but I was hoping the Court would
> > >> realize the prior doctrine was problematic (as both dissents did).
> > >>
> > >> The decision also reaffirms my earlier propostion that the Rehnquist
> > >> Court, like the Burger Court before it, is a "counter-revolution that
> > >> wasn't" (to borrow a line from Vincent Blasi).
> > >>
> > >> Best,
> > >> Scott
> > >>
> > >>
> > >> Sanford Levinson wrote:
> > >>
> > >>
> > >> >I don't understand the high dudgeon about this altogether
> > >> predictable
> > >> >case (at least if Midkiff and Berman aren't to be overruled). Why
> > >> >isn't it eminently reasonable to think that New London has a
> > >> right to
> > >> >try to pull itself out of the economic doldrums by luring Pfizer and
> > >> >other high-tax-paying entities. I take it that New London
> > >> could build
> > >> >the facility itself and then immediately rent it out to private
> > >> >businesses. If so, then I am not bothered by their placing
> > >> construction
> > >> >in the hands of the businesses. What this case really represents is
> > >> >the attempt by private property buffs to take advantage of what they
> > >> >perceive as a friendly court to cut back on these earlier cases and
> > >> >reinstate the jurisprudence of an earlier era (though
> > >> Stevens takes pains to point out
> > >> >how the precedents he is relying on are over a century old).
> > >> >
> > >> >I also confess that I find it somewhat hilarious that conservatives
> > >> >object to using eminent domain to help out private
> > >> businesses when they
> > >> >are just the people leading the fight to "privatize" much of
> > >> >government, which, as a practical matter, means the
> > >> shovelling of large
> > >> >amounts of dollars to non-governmental institutions who are
> > >> allowed to
> > >> >operate without significant supervision. Consider the high dudgeon
> > >> >from political conservatives if the Court were to rule, for example,
> > >> >that the implementation of "public welfare" programs had to
> > >> be done by state
> > >> >agencies instead of private "faith-based" organizations, etc.
> > >> >
> > >> >I also see similarities, incidentally, between this opinion
> > >> of Stevens
> > >> >and the opinion a few weeks ago in Raich: I.e., the
> > >> emphasis in both
> > >> >was on the complex nature of the overall regulatory (or
> > >> developmental)
> > >> >scheme. Stevens's opinion leaves properly open the question of a
> > >> >single-shot transfer from A to B that is not embedded within
> > >> a broader
> > >> >program that clearly could be thought to benefit the public, as does
> > >> >the New London development. Anyone who truly believes in judicial
> > >> >restraint should applaud today's decision.
> > >> >
> > >> >sandy
> > >> >
> > >> >-----Original Message-----
> > >> >From: conlawprof-bounces at lists.ucla.edu
> > >> >[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scott Gerber
> > >> >Sent: Thursday, June 23, 2005 4:58 PM
> > >> >To: daviwag at regent.edu
> > >> >Cc: 'Strang, Lee'; conlawprof at lists.ucla.edu
> > >> >Subject: High court OKs personal property seizures
> > >> >
> > >> >I don't know how others feel, but in my humble opinion the Court's
> > >> >opinion in this case ranks among the worst during the
> > >> Rehnquist Court
> > >> >era.
> > >> >
> > >> >Scott
> > >> >
> > >> >--------------------------------------
> > >> >
> > >> >Scott Gerber
> > >> >Law College
> > >> >Ohio Northern University
> > >> >Ada, OH 45810
> > >> >419-772-2219
> > >> >http://www.law.onu.edu/faculty/gerber/
> > >> >_______________________________________________
> > >> >To post, send message to Conlawprof at lists.ucla.edu To subscribe,
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> > >> >
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> > >> >or wrongly) forward the messages to others.
> > >> >
> > >> >
> > >>
> > >> --------------------------------------
> > >>
> > >> Scott Gerber
> > >> Law College
> > >> Ohio Northern University
> > >> Ada, OH 45810
> > >> 419-772-2219
> > >> http://www.law.onu.edu/faculty/gerber/
> > >> _______________________________________________
> > >> To post, send message to Conlawprof at lists.ucla.edu
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> > >>
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> > >>
> > >_______________________________________________
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> > >
> >
> > --------------------------------------
> >
> > Scott Gerber
> > Law College
> > Ohio Northern University
> > Ada, OH 45810
> > 419-772-2219
> > http://www.law.onu.edu/faculty/gerber/
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get password, see
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> > Please note that messages sent to this large list cannot be viewed as private.
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