Reading the "Public Use" clause

Sanford Levinson SLevinson at law.utexas.edu
Thu Jun 23 18:57:26 PDT 2005


Ilya writes:

 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. 

But, of course, the "welfare state" (which may or may not be derived
from the General Welfare Clause) operates, through taxation, to transfer
dollars from A to B.  So do proponents of the dissenting opinions
believe that the Court should go the next step(s) and declare
unconstitutional, say, such programs as medicaid (or any other similar
program)?  Or is it sufficient to say that the takings clause is about
"real" and not "personal" property?  But, of course, that's not what the
Fifth Amendment says.  One basis of the distinction is the special
emotional relationship that people may have to the family homestead,
which certainly seems to be present with one of the litigants.  But it
seems glaringly absent in several of the other litigants, who simply
viewed the land as a calculated investment.  If one can take their tax
dollars and give it as a subsidy to medicaid recipients, then why can't
the state take their land and give it to Pfizer (which may or may not be
desirable public policy)?

sandy


More information about the Conlawprof mailing list