My most recent paper, “Property” in the Constitution: The View from the Third Amendment, 20 William & Mary Bill of Rights J. __ (2012) (forthcoming; invited), discusses that and other linguistic perversions, all towards demonstrating that courts would do better to adopt the plain, present, public meaning of the text. Here, edited for your browsing pleasure, I describe the Supreme Court’s twisted interpretation of “private” in the Takings Clause.
In U.S. v. 50 Acres of Land, 469 U.S. 24 (1984), the Supreme Court held that the Takings Clause’s protection of “private Property” covers property owned by state and local governments. The Court admitted that “the language of the Amendment only refers to compensation for ‘private property,’ and one might argue that the Framers intended to provide greater protection for the interests of private parties than for public condemnees.” Id. at 31. The Court nonetheless went on to hold that “private” includes “public”:
When the United States condemns a local public facility, the loss to the public entity, to the persons served by it, and to the local taxpayers may be no less acute than the loss in a taking of private property. Therefore, it is most reasonable to construe the reference to ‘private property’ in the Takings Clause of the Fifth Amendment as encompassing the property of state and local governments when it is condemned by the United States. ibid.
We might well doubt the Court’s logic in equating inter-governmental transfers with takings of private property, as well as the truth of the claim that a taxpayer feels the loss of local public property as keenly as the loss of a home. We might likewise doubt the 50 Acres court’s invocation of U.S. v. Carmack,329 U.S. 230 (1946), a case the Court had decided nearly 40 years earlier. In fact, the Court in Carmack merely took note that the federal government had conceded its obligation to pay for taking locally-owned public property. Because the parties did not contest the claim, Carmack could hardly have decided it. The Court in 50 Acres of Land thus had only itself to credit or blame for giving “private” an extraordinarily broad meaning.
In retrospect, following the controversial holding of Kelo v. City of New London, 545 U.S. 469 (2005), we can see a sort of perverse logic at work in how the Supreme Court reads the Takings Clause. Whereas the Court in 50 Acres held that the protections afforded to “private Property” extend to public property, the Court in Kelo held that “for public use” extends to takings for private use done “pursuant to a ‘carefully considered’ development plan.” Id. at 478 (quoting 268 Conn. 1, 54, 843 A.2d 500, 536 (2004)).
Just as the Supreme Court thinks that “private” includes “public,” in other words, it also thinks that “public” includes “private.”