Wednesday, July 13, 2005

L&S: Takings -- an Error in Constitutional Framing?

Tom, in his lecture on “Reading, Writing, and Respecting a Constitution,” is talking about the infamous Kelo decision. Here’s the relevant text of the 5th Amendment:
…[N]or shall private property be taken for public use without compensation.
On the one hand, the plain meaning of “public use” does not include the transfer of property to a private entity like Pfizer or CostCo. That’s private use. But on the other hand, that means the amendment just doesn’t say anything about takings for private use. Maybe those are okay even without compensation.

Now, it seems pretty unlikely that the Framers would place greater restrictions on takings for public use (by requiring compensation) than on takings for private use. But on a plain language reading of the 5th Amendment, that’s what it sounds like they did. In order to get around this reading, one must claim that takings for private use are ruled out by some other clause of the Constitution. For example, one could say that eminent domain is not an enumerated power, and thus prior to passage of the Bill of Rights, the federal government could not take property at all, whether for public or private use.

I want to buy this reasoning, but it troubles me for two reasons. First, it’s usually said, and the historical record generally confirms, that the Bill of Rights was written to place additional limits – or perhaps clarify limits – on the government. Yet on the reading above, it turns out the 5th Amendment actually gave the government a new power. That’s at least odd. Second, if the writers of the Bill of Rights did intend to enumerate a new power, the phrasing of the clause in question is simply bizarre. It does not sound at all like a grant of power. It sounds like the writers expected government to take property from time and time, and they just wished to place a constraint on that power.

The more I think about this, the more I think we’re just looking at a simple mistake in the writing of the Constitution. The Framers probably just assumed that private property would only be taken for public use – taking for private use seemed self-evidently wrong – so they only saw the need to require compensation for public-use takings. But the language they chose did not unambiguously rule out the private-use takings. If I’m right, then we have a genuine conflict between original intent and plain meaning as modes of constitutional interpretation.


Tom W. Bell said...

As you know, Glen, from our conversation, I think that you raise an interesting and valid point. If I weren't more exhausted and rushed for time, I'd try to replicate my comments, here. But I am, alas, and so must content myself with this:

1) I think the Founders and their subjects simply presumed that the new federal government would exercise the long-traditional power of taking. They thus might not have thought that Amendment V added a power, instead viewing it solely as a restriction thereon.

2) Contrariwise, though, I am convinced that Amendment III does evince a desire to vest--somewhat covertly--a power in the federal government. For details, see my paper, "The Third Amendment: Forgotten But Not Gone," available at

John Noble said...

We should keep in mind that the Founders were constituting a federal government, and did not imagine that they were constraining the authority of state and local governments when they wrote the 5th Amendment.

I think the conflict between original intent and plain language Glen finds in the Fifth Amendment can be reconciled by acknowledging that public use and private use are not mutually exclusive -- they are overlapping. Private ownership and operation, I would think Glen and Tom would both agree, is "useful" to the public. And "public utility" embraces more than what can be piped and wired to the public. I have always assumed, maybe I'm mistaken, that privately owned and operated, and very profitable railroad companies laid their rails on property taken for "public use" -- in service of the national economy. I have trouble seeing why the local taking of local property in service of the local economy is very different.