Posted 1:38 PM by extinct

Constitutionalism by the Kelo

Jim Henley comments on my offer you can refuse, in a full post further below, of $50 if one can convince me that the Fifth Amendment takings clause textually restricts public takings to "public use".

Here's Jim:

"Near as I can tell, Matthew is not making the too-clever-by-half argument that the literal meaning of the Constitution requires compensation for “public use” takings but permits “private use” takings without compensation."

Although that had not been my original intent, if you'll pardon the expression, or my main one, a later discovery indicates it indeed may be the case. See my broader comment below.

Back to Jim:

(Refuting this is simple enough. Ask yourself, “Why would the framers have wanted to restrict public use takings more than private use ones?” Answer: the very thought is absurd. Therefore it cannot mean that.) He’s saying instead that the clause makes no effort to define a restrictive meaning of “public use,” and therefore Kelo’s circular interpretation - public use is any purpose for which a government siezes property - is constitutionally correct.

Yes, I do mean that, sadly. (Though not exactly: takings of property when done by government are not always, or typically, for public use or even a general discretionary purpose. More later on this. The "takings for public use" phrase probably simply means "exercise of eminent domain".) What the clause does nobly is attempt to hobble those eminent domain exercises quantitatively, i.e. by requiring payouts of compensation, and not qualitatively, i.e. by specifying what is or is not the proper extent of eminent domain. That is left blank, or left for other clauses.

But the seemingly "absurd" part Jim mentioned turns out to be true as well, as I feared before looking at it in detail. (BTW, a taking for "private purposes" might include freeing slaves, in that case the government doesnt "use" them, but an expansive reading would have permitted that though the freeing would be a taking NOT for public "use" but a private benefit flowing from an asbtractly broad (beyond even tax revenue increase or economic development) "public purpose" (liberation). Madison did indeed have that issue very much in mind, see article cited below, when he explained the takings clause, and he felt that the *compensation* part would inhibit it, he did not specify the "public use" part, even though freeing the slaves is the direct opposite of a literal narrow public "use" taking.)

Let me add to this via a reply to Jim's site that bounced back due to some technical reason from his site (further below). I probably should emphasize here that there are and were "takings" by government that are also normally uncompensated, which is why one should assume that "takings for public use" is simply descriptive of the type of taking and not a limitation to it: punishments for crimes, collections of debts. Additionally in colonial times as well, and NOT done by the crown but by fellow colonial legislators, there were takings for private use -- undeveloped property could be taken by law and given to developers. More on that further down.

Since I want, like most libertarians, an expansive protection of property from the Fifth Amendment clause, and it does not use restrictive language on "public use", I WANT it to read that "public use" is an expansive concept, so that it will embrace ANY government taking of property under, or purportedly under, eminent domain. So that a government would at least have to pay for doing the damage, a big incentive for hesitancy.

One could even envision an interpretation that would include the original owners of taken land receiving all increased tax revenue from a seizure. (Just 'cause it's libertarian, doesn't mean it's constitutional and vice-versa.)

My more detailed reply to Jim (with some minor corrections):

“Why would the framers have wanted to restrict public use takings more than private use ones?” Answer: the very thought is absurd. Therefore it cannot mean that."

Jim -- Further looks at the subject, by grace of thoughtful H&R commenter Baylen, found this evil pro-takings article (but whose facts seem ok and almost certainly true) http://www.law.georgetown.edu/gelpi/papers/ptreanr.htm
which does indicate that the above "absurdity" you identify may indeed be exactly what they were thinking.

The Founders did not especially fear a) government takings for private use, they were colonial legislators and State legislators using traditional English law and colonial local powers (see below) who did such takings regularly, nor did they fear b) takings for other public purposes (as opposed to merely literal "public use" purpose), as eg, tax seizures, punishment for crime, health, safety, and morals condemnations etc.

The Framers feared specifically *public*, ie government and probably a central one at that, takings without compensation (one implication of bills of attainder, btw); they were freaked by the Crown, by the central Congress's Continental Army's arbitrary seizures in the Revolution; Madison also thought the anti-Tory confiscation measures went too far --imagine a permanent central government doing such things. The compensation clause was seen as the proper limiting step, there isn't even a hint of limiting, or defining, language for "public use" in the clause where "public use" is used.

We ought not to back-inject the Framers with Lockean and Smithian purism. They were first and foremost State legislators. It was the much later more pro-property courts of the 19th century and beyond which began reading into the language some wholly (and in my opinion nobly) newly constructed out-of-the-blue limits, such as saying you can use eminent domain ONLY for "public use" despite the clear absence of any such limitation in the plain language of the Amendment.

Now, consider these colonial era malignant normalcies from the cited article:

"Many colonial laws imposed affirmative obligations on residents to use their property for some specific purpose to advance the overall interests of the community. A Plymouth colony ordinance required those with rights in valuable minerals to exploit their rights or forfeit them. A Maryland law required owners of good mill sites to develop the sites or run the risk of losing their property to someone else who would develop the site. Similarly, when [private] land was not developed or bridges fell into disuse, colonial governments took these properties from their owners and transferred them to someone else."

I agree that the Kelo outcome is truly evil, but there is no reason for anyone to get literalist and historicalist. It is the nonliteralism and non-originalism which saves the day.