In his interesting post responding to my critique of the Federal Circuit's AmeriSource decision, Orin argues that the Takings Clause does not require compensation in these cases.

Orin claims that "the argument that the Takings Clause applies is hard to make from an originalist perspective [because] Innocent third parties have long had their property rights interfered with in criminal investigations." There is a big difference between having your property "taken for public use" (the term used in the Fifth Amendment) and merely having it "interfered with." A search of a house is not a taking. There is, however, a taking if the government kicks you out of your house and takes control of it - either permanently or for an extended period of time. To my knowledge there is no evidence that the framers and ratifiers of the Bill of Rights accepted the view that there isn't a taking in cases where the government actually seizes the property of innocent third parties during a criminal investigation, as opposed to merely "interferes" with it. As the Court explained in Bennis, there were some early cases when the courts tolerated a seizure of property that had been used in criminal activity by a person whom the owner had entrusted it to. But that is very different from the seizure of property that the owner had never entrusted to a wrongdoer who went on to use it to commit a crime.

I recognize, of course, that the line between taking and interference may sometimes be fuzzy. But that doesn't mean that there aren't cases that clearly fall on one side or the other. Seizing someone's property and holding it for months (as happened in AmeriSource) is clearly a taking. Since I a more a textualist than an originalist, I think it highly significant that the text of the Fifth Amendment does not distinguish between the taking of private property for the "public use" of investigating crime and other kinds of takings. All require the payment of "just compensation." Since there were no professional police forces or extensive government evidence-gathering in the 1780s, the Founders may never have been confronted with a situation like that in AmeriSource; as a result we may never be able to discover their specific opinions on the matter (if indeed they had any). However, the text of the Fifth Amendment is more than broad enough to cover these cases. And it is the text, not the subjective intentions of the Framers, which is the law.

Orin also contends that "allowing such claims under the Takings Clause would be quite difficult to administer" because property rights of innocent people are so often "interfered with" during investigations. Part of this concern may be mitigated by the distinction between takings and interference discussed above. However, I don't deny that there will be at least some administrative problems. But the government can mitigate these by establishing a system of administrative compensation that can, in most cases, obviate the need for litigation. As a practical matter, property owners are unlikely to sue for recovery of small losses because of the cost of litigation. Some administrative costs will arise anyway. But that is an inevitable consequence of the enforcement of any constitutional right. For example, as Orin knows better than I, Fourth Amendment enforcement raises all kinds of difficult administrative problems arising from the difficulty of determining whether the police had adequate reasons for searching a particular location at the time they did it.

That said, Orin and I might well agree on the issue of administration more than we disagree. Orin writes:

I tend to agree with Ilya that the government should provide compensation in cases such as that raised by the Federal Circuit case. Plus, a statutory regime could be written to make it much more administrable.

I think that Orin is right on both of these counts. A statutory regime of compensation would be highly desirable and might well be enough to provide adequate compensation to property owners. It could also obviate some of the administrative difficulties of case by case litigation. However, it is unlikely that the government will have any incentive to enact such a scheme unless the judiciary starts enforcing the "just compensation" requirement of the Takings Clause in these cases. If Orin and I are right to believe that the administrative difficulties can be overcome by a statutory or administrative compensation procedure, then judicial enforcement might help facilitate that happy outcome.

Finally, Orin argues that my position - if adopted by the Court - would lead to a narrowing of the exclusionary rule. This aspect of the matter is beyond my expertise, so I can't comment on it intelligently.

Unfortunately, I will be on the road most of tommorrow, so may not be able to continue this debate. However, I may return to it on Saturday if additional points occur to me at that time.