Reading the "Public Use" clause

Mark Graber mgraber at
Fri Jun 24 14:41:57 PDT 2005

Here's a thought inspired by the return to first principles and
liberal/libertarian thought.  Maybe the takings clause is a bit like the
Amar/Thomas religion clause.  Part is an individual right (just
compensation/free exercise), part is a limit on national power
(establishment/public use).  Notice an interesting implication, if we
take Thomas and Amar seriously.  While the individual rights portions
are incorporated, the limits on national power are not.  Therefore, the
Fourteenth Amendment is quite concerned with just compensation, but not
with public use (after all, it would hardly violate fundamental
principles of fairness to take property for public purposes (as opposed
to use) while providing just compensation.  This may explain why some of
the liberals on this list, myself included, worry more about whether
something is a taking, regulatory or otherwise, and less about public
use if just compensation is conceded.

Mark A. Graber

>>> "Sanford Levinson" <SLevinson at> 06/24/05 4:50 PM >>>
AS a matter of fact, I generally agree with David and Ilya (and most
economists) that minimum wage and maximum hour laws are of little actual
aid to the poor, and I actually teach Dagenhart with some sympathy for
the position that the national law represents an attempt by relatively
richer states to protect themselves against the self-exploitation of
poorer states.  This doesn't mean that I agree with Justice Day, but I
do treat his opinion seriously and, for what it is worth, I am very
critical of Holmes's suggestion that the Commerce Clause in effect has
no particular purpose (such as freeing up blockages in the national
market) and therefore that Congress has power so long as there is a
"nexus" with commerce, independent of the purpose of the regulation.
This eliminates the "pretext" analysis in paragraph 42 of McCulloch,
which I think is unfortunate.  This being said, I also teach my students
that if one really wants to help the poor (especially those who can't
effectively participate in the economy), one must give them material
resources, and the cash to pay for that, whether it is in-kind or cash
benefits, must necessarily come from those with the material resources,
i.e., the better off; and, of course, I find nothing unconstitutional in
such forced exchanges. 

I don't know that support for a redistributive welfare state commits one
to defense of "constitutionally unlimited government power over economic
markets."  Though, as suggested in an earlier posting, to the extent
that I have argued that Thomas's opinion in Hamdi, say, leads to
"constitutionally unlimited presidential power, including the power to
order torture and other similar outrages," I recognize that one person's
"reasonable" exercise of government power is another person's "arbitrary
and unlimited" such exercise.  


-----Original Message-----
From: Ilya Somin [mailto:isomin at] 
Sent: Friday, June 24, 2005 4:37 PM
To: DavidEBernstein at
Cc: Sanford Levinson; jfnbl at; marty.lederman at;
VOLOKH at; conlawprof at
Subject: Re: Reading the "Public Use" clause

This exchange points to a key issue dividing libertarians and liberals.
The latter seem to believe that in order to ensure  an adequate level of
redistribution to the poor, government needs to have largely unlimited
power over economic affairs. While some libertarians do in fact oppose
all redistribution on principle, most (and this certainly includes David
and myself), do not necessarily object to redistribution that provides
the "basic necessities of life" to those truly unable to care for
We do, however, reject the view that  admitting this entails accepting
the need for constitutionally unlimited government power over economic
markets. To the contrary, as the cases covered in David's post indicate,
such unlimited power often works to the detriment of the poor by
enabling the politically more powerful nonpoor to use the power of the
state to advance their own interests at the expense of the most
disadvantaged members of society.

Speaking now purely for myself, I have no objection to a constitutional
system that allows government to redistribute wealth to the poor through
the tax and spending system. And I think the Spending Clause probably
permits this.  On the other hand, I think that the US Constitution
appropriately places substantial limits on government's ability to
regulate markets and take real property.  Whether these two conclusions
are right or not is a much bigger question than I can fully address
So I'll confine myself to saying that the debate over whether they are
inconsistent with each other (or, as I would argue, mutually
reinforcing) is perhaps the key issue dividing libertarians and liberals

Ilya Somin

On Fri, 24 Jun 2005 DavidEBernstein at wrote:

> I don't know that we disagree regarding whether free markets will 
> provide "the poor", or all the poor, with the basic necessities of 
> life.  But Hughes used a similar phrase in West Coast Hotel, and I'm 
> pretty confident that the major effect of a minimum wage law for women

> only would have been to deprive many of them of work, as Sutherland 
> pointed out in Adkins.  More generally, if one looks at the major 
> controversial due process cases of the Lochner period that overturned 
> state legislation--Lochner itself, Coppage, Adair, Jay Burns Baking, 
> Meyer, Pierce, New State Ice, Buchanan v. Warley, Adkins, Wolff 
> Packing Co., Louis K. Liggett Co., etc., I find it difficult to agree 
> that overall these cases could be said to be about redistribution to 
> the poor, or that the poor would have been better off if these cases 
> came out the other way.  [The Progressives and New Dealers believed 
> this, largely because they believed that economic progress for the 
> poor would come through the labor movement, and these decisions, as a 
> whole, did weaken labor unions.]  But I don't see any challenge in 
> these cases to the idea that the government may redistribute tax money

> to the poor.  Nor was Blaisdell about that; certainly looking back we 
> can at least appreciate,if not agree with, why the four conservative 
> dissenters, seeing the evils of Bolshevism and Naziism resulting from 
> economic  and social crises in Europe, were insistent on sticking to 
> the letter of constitutional limitations on government power in the 
> 1930s.  They believed the Constitution was a bulwark against 
> authoritarianism (I have a great cartoon from 1938 showing the Statute

> of Liberty holding up the Constitution to defend America against 
> foreign
> "isms.")  The other side believed that the government could solve the 
> social crisis, and avoid problems that way.  Fair enough, but  not 
> really a debate about redistribution.
> In a message dated 6/24/2005 2:17:42 PM Eastern Standard Time, 
> SLevinson at writes:
> As to Coppage, I don't use the notorious dicta to make the judges 
> "look like ogres" so much as for its excellence in summarizing a basic

> point of view about the relationship between free-market ideology and 
> (in)equality.  I have no dispute with David that the poor may be "most
in need of contractual rights."
> Where we disagree, I suspect, is whether that will be sufficient to 
> provide the poor with what Hughes in Blaisdell labeled the basic
necessities of life.
> If not, as I think is the case, then the key question is whether the 
> state can take from taxpayers A,B, and C to give to indigent persons 
> X, Y, and Z, where there is no particularly plausible argument that 
> A,B, and C "benefit" other than from the knowledge that there is less 
> suffering in the world.  (Of course, Richard Posner defends the 
> welfare state on the forthright ground that it is a cheap way to buy a

> certain level of insurance against rebellion by the poor.)
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