Reading the "Public Use" clause

[DavidEBernstein at aol.com]

The Ohio Lucas County case is one I've not stumbled across before, and I 
thank Sandy for pointing it out (the court held that the state could not allocate 
an annual stipend for each blind person incapable of taking care of himself), 
though the case seems so unusual--all sorts of poor relief were available in 
various parts of the U.S. for generations without constitutional challenge--it 
makes me wonder what was really going on.  Even Ohio had its poor laws, which 
permitted, but didn't require, counties to get labor  from able-bodied 
indigents in return for payment.  
http://www.poorhousestory.com/OH_LegalSummary1904.htm

As for Coppage v. Kansas, I don't see how the Court invalidating a criminal 
law that provided a special exemption to at will employment for labor union 
members can remotely be conceived as a challenge to the welfare state, as such. 
Dicta in Coppage about "inequalities of fortune" has long been taken out of 
context to make the Justices look like ogres, but the basic point was not very 
controversial: if the exercise of the right to contract must be premised on 
equality of fortune between the parties, there will be no right to contract, since 
parties are rarely in exactly the same economic position.  The Court notes, 
by the way, that the poor are most in need of contractual rights, and that the 
right of an employer to refuse to deal with union members is the same as the 
right of union members to refuse to deal with nonunion workers or company.  And 
I would note add workers represented by unions at this time tended to be 
relatively well-off compared to the workers (immigrants, blacks, etc.) that the 
unions typically excluded, so the overall distributive consequences of Coppage 
were likely "Progressive."


"A" to "B" concerns, as I've always understood it, are concerned with taking 
from individual or class A to give to individual or class B.  The 
arbitrariness involves both the class selected to be taken from, and the class to be given 
to, and is concerned less with redistribution, per se, as with corruption or 
oppression (why, other than corruption or oppression of some sort, would the 
government, say, pass a law taking all property from lawyers and give it to 
doctors?) If we don't want the courts sitting as a superlegislature deciding 
which A to B transfers are corrupt or oppressive, we draw certain bright lines, 
like no use of the eminent domain power for private development purposes.   I 
don't think it's very difficult to not include within that line broad-based 
taxation (who is the "A"? all taxpayers?  don't they have plenty of political 
power?) for redistribution to the needy. 

Maybe I'm wrong, and I'd welcome correction for historians on the list, but I 
think the A to B line has been incorrectly associated with redistribution, as 
such, as opposed to the specific dangers of allowing government to transfer 
resources from arbitrary class A to arbitrary class B.  

In a message dated 6/24/2005 10:44:37 AM Eastern Standard Time, 
SLevinson at law.utexas.edu writes:
My thanks to Eugene for clarifying the facts (which, I think, strengthens the 
argument that there was a very low probability of corruption in the taking).  
As to David's point, some of the early cases attacking the legitimacy of the 
welfare state--which by definition takes from the haves to provide goods at 
below-market cost to the have-nots (except for state university law school 
tuition subsidies, which often take from the less well-off to give to the better 
off, but that's for another discussion!)--certainly suggest that they are 
"socialistic" and full-scale attacks on the very idea of private property.  My 
favorite such opinion, found in our casebook, is Coppage v. Kansas.  But see also 
the great case (rhetorically) Lucas Cty. v. State of Ohio, 75 O.S. 131 (1906), 
in Brest et al., p. 1363-64.  And I certainly detect such arguments in Richard 
Epstein's Takings or Bob Nozick's Anarchy, State, and Utopia. To a committed 
opponent of forced redistribution that cannot easily be defended by way of 
classical arguments about "public goods," it's hard to see why the welfare state 
is any less "arbitrary" than the takings.  David certainly provides no reason 
to think otherwise, unless he wants to concentrate on the distinction between 
real property and money taken in taxation. 


Professor David E. Bernstein
George Mason University
School of Law
http://mason.gmu.edu/~dbernste


Professor David E. Bernstein
George Mason University
School of Law
http://mason.gmu.edu/~dbernste
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