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).

Comments

[Aaron]

I understand your argument, and your substantive response to this textualist notion, but as it was a discussion of textualism (and the sometimes absurd results it can create) which sparked this debate, is it not fair to observe that, as you describe the contrary theory, "the phrase 'no person shall be deprived of life, liberty or property without due process of law' merely requires some fair procedure to be satisfied before a person is deprived of life, liberty or property, and that the procedural requirement is satisfied when the legislature votes on a particular measure."?

That is, unless one embraces the subjective "original meaning" textualism endorsed by Michael Rappaport, in which case competing interests all try to crawl into the minds of the founding fathers and pretend to divine how they would have interpreted the language at issue. Which, apparently, we are to do only when the language itself is "unclear", which in turn seems to translate into when the plain text is inconsistent with the legal position we wish to advance, such that we can derive "implicit" permissions and prohibitions from language which is silent on the issue (or otherwise appears to hold for a contrary position). After all, when it suits our purpose, we lawyers are pretty good at arguing that any given passage of text is unclear.

(This comment is about textualism, not the merits of the governmental taking of private land for competing private interests.)

[Timothy Sandefur]

I’m not entirely sure I understand your point. If you’re saying that procedural due process theory must at least coexist with a vigorous substantive due process theory, of course I agree with that. I’m not comfortable even with talking about substantive versus procedural due process anyway, since substance is procedure and vice versa, when it comes to the concept of free and just government. Substantive due process (a name given to the theory by its enemies) is simply the notion that government exists to accomplish certain public ends, and that to substitute for those ends a sort of warfare of interest groups which turns government into a weapon by which the (governmentally) strong oppress and rob the weak, is to pervert the very concept of government, and therefore is unconstitutional. Private takings are simply a polite return to the state of nature, wherein the weak are not secure against the depredations of the strong. That’s why the Due Process Clause was written—it’s the “Law of the Land” Clause from the Magna Carta, which forbids special legislation that lacks any public rationale.

I do embrace an original meaning textualism—as I hope my recent post about the Ninth Amendment demonstrates. But the original meaning includes the notion that no legitimate government may take property from some people and give it to other people on the basis of a naked preference. As Madison said, that alone is a just government which impartially secures to every man that which is his own. Enforcing this principle doesn’t require “crawl[ing] into the minds of the founding fathers.” It simply requires an understanding of the principles of free and just government. Fortunately for us, the Founders left us the tools with which to do just that, in large part in the form of the Declaration of Independence.

[Aaron]

I'm just pointing out that the underlying argument about the vagaries of textualism is not resolved by any particular school of textualism. Many of the tools the "textualists" propose as a resolution of the problems of that approach to constitutional interpretation seem to be a giant step away from the text, and when it comes to deriving the intention of the framers many seem better suited to the psychic friends network than to legal scholarship.