Textualism and the Takings Clause: I don't know much at all about the Takings Clause, so I hope the Takings Clause experts out there can help me (and inform the VC's readers) with a very basic question I have concerning the issues raised in the Kelo v. City of New London case. In Steve Bainbridge's post linked to by Randy below, Steve notes the text of the Takings Clause:

Nor shall private property be taken for public use, without just compensation.

Steve then adds:

Note that the Takings Clause has two independent requirements: (1) just compensation must be paid; (2) the property must be taken for a "public use." This second requirement means that the government may not take away your property to give it to some other private individual (or company) who will then devote it to their own personal or business use.

I have no expertise at all in the Takings Clause, but my understanding is that this is more or less an accurate summary of exsiting Supreme Court doctrine. As best I recall, the Supreme Court has interpreted the Takings Clause this way for a long time.

  At the same time, this isn't what the text of the Takings Clause actually says. The text of the clause says that if private property is taken for public use, then just compensation must be paid. The Constitutional text doesn't address takings for private use at all. Not only would such a taking seem to be allowed by default, but the Constitutional text doesn't even seem to require the government to pay just compensation for it. The text doesn't say, "Private property shall not be taken for private use, nor shall private property be taken for public use without just compensation." It only says "Nor shall private property be taken for public use, without just compensation." Obviously there are good policy reasons why we might not want the Court to read the text this way, and there are also reasons why someone might or might not be a textualist. Still, if you're a textualist it seems that you're kinda stuck with that reading.

  My question is, what am I missing? How can a textualist agree with the Court's current reading of the Takings clause? My very quick look at the cases suggests that the Court picked up the "public use" element as a requirement for a taking back in the days when the Justices limited the legislature's authority to the "police power"; the idea is that a taking has to be a public use for it to fall within the police power. But the "police power" limitation wasn't rooted in the text of the Constitution, either. It seems to me that a good textualist would say that either the taking in Kelo was for "public use" and required comepnsation or was for private use and doesn't require compensation at all. Oddly, though, I can't seem to find any self-described textualists who interpret the Takings Clause this way.

  I have enabled comments.

Stuart Buck On Text and Takings: 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.

More Responses to Textualism and the Takings Clause: Over at The Right Coast, Michael Rappaport has a thoughtful response to my Wednesday post about textualism and the Takings Clause. Meanwhile, Kip of A Stitch in Haste calls me "smarmy," my post "utterly silly," and the Volokh Conspiracy in general "a collection of bored semi-scholars and intellectual narcissists preening themselves in front of the blogospheric mirror." Hey, that's a pretty good quote -- does anyone else think it would be perfect for one of our t-shirts?