Reading the "Public Use" clause
DLaycock at law.utexas.edu
Thu Jun 23 20:41:17 PDT 2005
Both left and right (Sandy and Ilya I think it was) raise the question whether the rules we apply to takings of real property should also apply to takings of money through taxation. Emotional attachments to property are sometimes real, but surely that is not the main point. Takings take from one or a few; taxation takes from all or from broad classes, and that creates political protection against either concentrating the costs on a few or setting the rate too high.
Of course the distinction is imperfect; legislators draw gerrymanders in the tax code, although provisions that single out one or a few far more commonly grant tax benefits rather than impose narrowly targeted taxes. We might do well to take claims of discriminatory taxation more seriously than courts do, but even without that, few taxes approach the narrowness of a taking.
University of Texas Law School
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From: conlawprof-bounces at lists.ucla.edu on behalf of Sanford Levinson
Sent: Thu 6/23/2005 8:57 PM
To: Ilya Somin; marty.lederman at comcast.net
Cc: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: Reading the "Public Use" clause
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)?
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