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February 25, 2005

The Takings Clause and Private Use

Orin Kerr and Stuart Buck and 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.

Posted by erasmuse at February 25, 2005 11:56 AM

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