Reading the "Public Use" clause

[Ilya Somin]

This raises an important issue. Regarding original meaning, I think that
the founders drew a distinction between taxation and transfer of real
property and allowed the former to play at least some redistributive role.
Certainly, in the founding era itself, the federal govt supported itself
through tariffs and imposts that were then used to spend money on projects
that, at least in some cases benefited one group at the expense of others.

Is there good reason to distinguish real property from money in this way?
I think there is, and it goes beyond personal attachment. Money is by
definition fungible. Other types of property, by contrast, is often not.
The very fact that I continue to own a piece of property suggests that I
value it above "fair market value." Otherwise, I would presumably have
sold it already. Thus, condemnation for FMV destroys social value in a way
that transfer of money from A to B does not.

That said, I believe that a proper interpretation of the Spending Clause
would place at least some substantial limits on  what Congress can spend
money on. Many state constitutions explicitly ban spending that benefits
only specific private interests, though courts have interpreted them
narrowly in recent decades.

An ideal constitution, in my view, would limit the spending power more
than the Spending Clause of the Article I does, and certainly more than
current Spending Clause doctrine does. But the fact that the Constitution
may be flawed in one area is not justification for misinterpreting it in
another area, where it is much closer to the ideal.

Ilya Somin



On Thu, 23 Jun 2005, Sanford Levinson wrote:

> 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
>