Stuart Buck responds to my prior post about textualists and the Takings Clause:
[Kerr’s] argument is the equivalent of the following: “The Fifth Amendment prohibits the government from putting someone in jeopardy of ‘life or limb’ twice ‘for the same offense.’ Granted, this prohibits the government from prosecuting someone twice for the same offense, but it doesn’t prohibit the government from prosecuting people for no reason at all. Thus, if you’re a textualist, you have to admit that the 5th Amendment allows the government to prosecute innocent people willy-nilly.”
A few thoughts. First, I should have been clearer in my first post that I don’t think a textualist has to say that a taking for “private use” does not trigger a right to just compensation. The text does not compel a distinction between public use and private use; the more sensible of the available textualist readings is that any government use is a public use triggering just compensation, and the phrase “public use” just means “by the government.” The part that interests me is the claim that the government cannot take property for private use; I find this claim quite appealing, and it may be persuasive based on the original intent of the Fifth Amendment or (perhaps more likely) other provisions of the Constitution, but I’m struggling to see it in the text.
Second, to the extent it matters I don’t think Stuart’s example quite proves his point. “Offense” in the Fifth Amendment means criminal act; the Fifth Amendment prohibits the government from bringing criminal charges against someone twice for the same criminal act. If the government started bringing criminal prosecutions against people for a crime that Stuart would deem “no reason at all,” then this “no reason at all” would be the “offense” for the purposes of the Fifth Amendment. Alternatively, if the government starting hauling people to jail outside of the criminal justice system [Update: not under a war powers authority, but just because the government didn’t want to give someone access to the courts], then that would be a violation of the Sixth Amendment jury trial right [and Due Process] the first time, not a Double Jeopardy violation the second.
Finally, I realize I am being sloppy by not being explicit about exactly what version of textualism I have in mind. As with any school of legal interpretation there are as many versions as there are commentators. I am doing that because I am more interested in exploring the general tension between the text and the intepretations endorsed by many self-described textualists than in the details of any one approach.
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