"Public Use" and Regulatory Takings

Eugene Volokh, in a recent a recent blog post, argues that the majority opinion in Kelo, whatever its vices, proves more accommodating to regulatory takings theory than the dissenting opinions. If true, that would pose an interesting dilemma to friends of private property. On the one hand, they abhor the Kelo Court's willingness to uphold takings that merely transfer property from one private party to another. On the other hand, they are eager to expand the Takings Clause's just compensation requirement to regulations that reduce the value of private property.

I don't read Kelo to pose such a dilemma, however. To the contrary, I think friends of private property can (and should) side with the dissenters' view that "public use" cannot mean "private use." Here is how I put my counter-argument in the comments section to Eugene's post:

The Kelo majority does not err in reading "public use" in the Fifth Amendment to mean "public benefit." That broad reading of the Takings Clause jibes with the more restricted reading pressed by the dissents. Indeed, all plausible interpretations of the clause comport with the notion that a taking must benefit the public; that alone can justify the seizure of private property for public use.

The Court's interpretation of "public use" errs because that phrase clearly disallows "private use." We can understand that textual limitation as a means of ensuring that takings in fact promote the public good by way of institutional design, setting things up to avoid dire public choice problems. But we don't have to get into the theory behind the text, given its plain meaning.

If, contrary to the Kelo majority, we understand "public use" to exclude "private use," what does that say about regulatory takings? Not much. A regulatory taking does not transfer title to a private party. Rather, it erodes the scope of rights enjoyed by an extant owner. So while the Kelo majority might embrace the theory that regulations can effectuate takings, the Kelo dissenters can do likewise. Saying that "public use" excludes "private use" does not bar you from also saying that regulations take private property.

By the way, I think that it inadequate to frame the interpretation of "public use" as a choice between "public ownership forever" versus "private ownership immediately." It is consistent with the dissents' view to allow a government entity to take private property, put it to public use for some years, and then eventually sell it to a private party. The question is whether, during that period of public ownership, the public actually gets to use to property. I blogged on that point prior to the Kelo decision; see http://agoraphilia.blogspot.com/2005/01/whats-use_31.html.