The Takings Clause and Private Use
"http://volokh.com/archives/archive_2005_02_20-2005_02_26.shtml#1109193529">Orin
Kerr and
"http://stuartbuck.blogspot.com/2005/02/takings-clause.html">Stuart Buck
and
"http:
//therightcoast.blogspot.com/2005_02_01_therightcoast_archive.html#1109296618153
86823">Michael Rappaport have been noting that the Constitution’s Taking
Clause says
Nor shall private property be taken for public use, without just compensation,
but if read literally it does not prohibit private property to be taken for
*private* use without just compensation. The blogs wonder whether any
textualist
does read it that way. As it happens, we were discussing that very point
yesterday in the Indiana Law and Econ lunch and I, and
Mike Alexeev I think, were indeed reading it that way. . . .
. . .
Why would we do that? Well, why not? If courts read the clause literally, that
would not necessarily result in governments or private people taking private
property for their own use. States could still have laws against theft by
individuals and by government. The Federal Constitution does not have to do all
the work of government. Indeed, as far as the federal courts are concerned,
burglary is not a crime. It is only a crime in state courts; there is no federal
law against it.
Thus, the fact that the U.S. Constitution does not criminalize private
takings for private use is not a problem. Nor is it outrageous that it does not
prohibit public takings for private use. First, one might argue that such
takings are beyond the scope of the police power, as not protecting (except in
special cases) “health, safety, welfare and morals”. Second, just because a
state government *could* do it doesn’t mean that it will. That is up to the
political process, and except in unusual cases that process will prevent such
takings.
Why, then, have a Takings Clause for takings for *public* use? Maybe it is
not all that important, actually. But there actually is a reason why government
takings for public use is a greater threat than takings for private use: the
very fact that taking for private use is scandalous. Governments frequently
have good reasons for takings for public use, so such a taking will not per se
be viewed as suspicious by public opinion. In every such taking, however, the
government has a temptation to underpay, to be able to spend the cash savings on
other things. It is therefore useful to have the courts keep an eye on the
executive and legislative branches.
In contrast, if the government takes property to give to a private person,
voters will immediately be suspicious. With a spotlight on the transaction, the
politicians have to do a lot of explaining, and this will not be a clever way
to reward their friends or to solicit bribes.
In fact, the best thing might be to have a private takings clause like this:
“Nor shall private property be taken for private use, unless the property
owner is given no compensation
Without this perverse clause in place, the politician may be able to get away
with taking property from owner Smith to give to friend Jones, because he can
bribe Smith with the compensation to keep quiet, and maybe other people will
not notice.
With the perverse clause in place, the politician will have to be extremely
careful when he takes property from Smith and gives it to Jones. Smith will
complain loudly and make whatever allegations of bribery, corruption,
favoritism, and discrimination he can come up with. The politician will have to
respond with why the transfer is good for public policy, and the resulting
adversary process will protect the voters.