At Volokh Conspiracy, inspired by three Justices dissenting last week from denial of certiorari in Eychaner v. Chicago, Jonathan Adler and Ilya Somin debate the original meaning of the takings clause.
Jonathan Adler: Should an Originalist Justice Support Overruling Kelo v. New London?
Ilya Somin: Kelo, Originalism, and Public Use
The question is whether the Takings clause ("nor shall private property be taken for public use without just compensation") precludes the government from — as in Kelo v. New London – taking private property from one person and giving it to another private party to promote economic development. From Professor Adler's post:
Kelo v. New London is one of the most reviled Supreme Court decisions of the past twenty years. It prompted a substantial backlash, spurred eminent domain reform throughout the nation, and inspired a movie. As a policy matter, it is abominable that the government may take someone's home to facilitate economic development plans of corporate interests, made all the more so here because the promised economic development never even occurred.
There is broad agreement (at least on the political Right) that such uses of eminent domain are bad. But does that mean the use of eminent domain for economic development is unconstitutional? I am unconvinced.
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The first thing to note is that in the Takings Clause itself, "public use" is not written as a limitation. The text does not read "nor shall private property be taken other than for public use." Rather it identifies a type of taking—those "for public use"—that require compensation. "Public use" is used to differentiate a subset of takings. It is not written as a requirement or limitation.
Read in the context of the full amendment, this makes sense, for there are all sorts of takings or property for which compensation is not required, including taxes, fines, and seizures. Those takings require due process, but do not require "just compensation." It is when property is taken for a public purposes (as opposed to as a punishment or as an exaction) that compensation is required. To restate: The text requires Due Process for all takings of property, and then requires compensation for the subset of takings that are "for public use." Like it or not (and I most definitely do not) this is the most straight-forward reading of the constitutional text, and there is little historical or other evidence to the contrary.
From Professor Somin's response:
The key point is simply this: No significant jurist or legal commentator in the Founding era embraced [Professor Adler's reading] during the Founding era, or for many decades thereafter. Significantly, nineteenth-century advocates of broad eminent domain power (and court decisions endorsing it) did not advance this theory. They instead argued for the broad view of public use.
If [Professor Adler's] approach were truly in accordance with original meaning, one would expect people at the time to note that and to deploy it as an argument for wide-ranging use of eminent domain. While federal government takings were rare during this period, most state constitutions had public use clauses with identical or similar wording to the federal one. Takings by state and local governments generated extensive public use litigation. Yet [Professor Adler's reading] is conspicuous by its absence in this period.
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A number of other considerations also count against [Professor Adler's] theory. For example, if "public use" does not constrain the reasons why property may be taken, but merely indicates which takings require compensation, then that leads us to the absurd conclusion that even the most egregious takings for private interests do not require compensation, while takings for even the most important public infrastructure do.
In his post, Jonathan suggests that the phrase "public use" may differentiate one category of taking that requires compensation from others, such as taxes, fines, and seizures, that only require "due process." But then, as today, taxation and the imposition of fines for lawbreaking were not regarded as takings of property at all. By contrast, seizures unrelated to taxation, fines, or some types of exercise of the "police power," generally were regarded as takings of private property, and thus did require compensation. Indeed, one of the purposes of the Takings Clause was to prevent a recurrence of uncompensated seizures of property that had occurred under British colonial rule and during the Revolutionary War.
I agree with Professor Somin, basically for the reasons he states, but I would put them in the opposite order. Professor Adler's reading appears to reach the bizarre result that takings for public use require compensation but takings that give property to other private parties to promote economic development (as in Kelo) do not require compensation. I can think of no reason why the drafters would have chosen this result. (One possibility is that they thought takings for private use were precluded by the due process clause, but I'm not aware of much evidence in this direction and in any event, if true, it would lead to the same result as Professor Somin's reading of the takings clause.) That should give us considerable doubt whether this is how the clause was originally understood.
Of course it's possible that the founding generation did understand the takings clause as Professor Adler suggests, no matter how peculiar it seems to us (or that they made a drafting error). But Professor Somin's historical point then carries considerable force: if there isn't any evidence that anyone in the Founding era, or for many years afterward, read the clause as Professor Adler suggests, that's a good indication that he's not giving it its original meaning.
More broadly, I see this as an illustration of what Justice Scalia called the difference between "hyperliteralism" (which he opposed) and "fair reading" textualism (which he favored). [See pp. 33-41 of Reading Law.] Literally and read in isolation, the text of the takings clause does indeed say what Professor Adler says. But read in the context of the document as a whole and its background, it makes no sense to read it that way. The "fair reading" is that by implication it precludes takings not for public use.
Consider a sign on the door of a store selling fragile merchandise: "Small dogs allowed only if leashed." Are large dogs allowed unleashed? Well, yes, if the sign is read "hyperliterally." But surely not, under a fair reading. Given the context, the obvious implication is that large dogs aren't allowed at all.
Update by Mike Rappaport: John McGinnis and I take a position similar to Professor Somin's on page 35 of this paper.
Posted at 6:07 AM