Takings and Textualism
The meaning of liberty

Private takings

Michael Rappaport writes, in answer to Orin Kerr’s question about private takings, “why did the Framers not write the Clause more explicitly to prohibit private use takings…? [I]t was regarded as unnecessary. No one thought that a taking for private use was legitimate.” Yes, and we know that because they said that “[n]o person shall be...deprived of...property, without due process of law.

Properly understood, the Due Process Clause is a prohibition on private takings. The Fifth Amendment says, property shall not be taken for private use (the Due Process Clause) and if it’s taken for a public use, we’ll pay just compensation (the Takings Clause).