…[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.