In Kelo v. City of New London, 545 U.S. 469 (2005), the Supreme Court upheld the involuntary seizure of Ms. Kelo's house by the City of New London, which immediately resold it to a property developer, against a challenge that this was not a "public use" and that the seizure therefore violated the Fifth Amendment's for-public-use clause. A great number of my friends with political views I find generally congenial and with substantial legal talent have taken great exception to this decision and undertaken substantial efforts to have it overturned.
I rarely have opportunity or inclination to say so, but in this case Justice Stevens—who wrote the majority opinion in Kelo—was right, if perhaps for the wrong reasons; and my redoubtable property-rights protecting clever friends are wrong.
When discussing the proper interpretation of a legal document, even a Constitution, it is often useful to read the actual operative text—this will not settle every question of interpretation, but it will exclude many earnestly tendered misinterpretations and does not take long. So here it is:
[N]or shall private property be taken for public use, without just compensationU.S. Const. amend. V (Takings Clause, actual).
The language could not be plainer: The Fifth Amendment is completely silent on the subject of property not taken for public use. Hence, most of the advocates of a strong for-public-use analysis are aiming their fire in the wrong direction. If they could establish a category of takings which were deemed to fall outside the "for public use" category, the Fifth Amendment would not ban such takings. To the contrary, taking deemed not "for public use" would lose all existing constitutional protection, including the just-compensation requirement. If they had prevailed, the correct legal conclusion would not have been that Ms. Kelo got to keep her house, but that City of New London would have been able to take it without even having to pay her just compensation. This could hardly be the preferred outcome for the self-styled champions of Ms. Kelo's rights.
Rather, the advocates of a strong public-use analysis seem to be basing their argument on a different (i.e., imaginary) version of the Takings Clause which reads something like this:
[N]or shall private property be taken [except] for public use [and] with[] just compensationU.S. Const. amend. V (Takings Clause, as imagined). But, despite some unfortunate dicta in some court cases, that is not what the actual Fifth Amendment says. Judges and lawyers charged with upholding the actual legal document should take their cues from its text, rather than from what they wish it said, as if some grand act of legal make-believe could change the text.
That simple fact should be sufficient to end any legal case based on the theory that one's property was taken not for public use. But even if one examined the entirely separate question of whether the actual Takings Clause should be replaced with the imaginary one through constitutional amendment, the right answer for friends of private property should still be no—the imaginary takings clause would impose practically no constraints on the government and, in so far as it nevertheless affected government conduct, the incentives created would be harmful to the cause of liberty.
Imagine that the for-public-use clause was a separate substantial legal requirement on government takings and that transfers to other private owners would be barred by it. Very little good would come of this.
First, any determined government could trivially circumvent it. All the City of New London would need to do is take ownership of the land and keep it while renting out the land on agreeable terms to a management company (i.e., what otherwise would be the property developer). Appropriate financial arrangements can be made which achieve nearly the same outcomes as if the City of New London could just sell the property to the developer outright. Nothing in this would benefit the Ms. Kelos of this world.
Second, we would have created yet another unnecessary area of indeterminacy in constitutional interpretation: How long does the City of New London have to hold the property before it is allowed to sell it? A day? A year? Forever? Nothing in this imaginary Takings clause even hints at a principled answer to this question.
Third, while a short holding period requirement would do little to even formally restrain a government bent on taking private property, a long one would be even worse. Do we really want to create a whole new class of property in this country which can only be held by the government with the government holding all residual claims? Property which can't ever be returned to private ownership? I understand that some nations have ill-advised policies which bar foreigners from buying certain types of property, like real-estate and natural resources, within their boundaries. But at least those countries usually allow their own citizens to own such property—we are proposing to bar even natives from owning certain properties. And we want to do this in order strengthen private property rights? This makes very little sense.
None of this is to suggest that the (actual) Takings Clause is not an extremely important constitutional provision. I believe strongly to the contrary. But all the real work of the Takings Clause is done by the just-compensation requirement. The for-public-use clause imposes no substantial independent requirements. Attempts to give additional meaning to the for-public-use clause are deeply misguided and true friends of property rights would do much better to direct their efforts at strengthening the just-compensation requirement—an area in which the Supreme Court has often ruled badly and could use some correction.
One criticism of this position which could be raised is that it effectively reads the for-public-use clause out of the constitution by depriving it of any independent meaning. Indeed, it is a sound principle of legal construction that every legal document should, as far as possible, be interpreted to give meaning and effect to every clause. Interpretations which fail to do so are—while not necessarily wrong—rightly disfavored.1
But the interpretation of the Takings Clause given here does no such thing. To see that, imagine the Takings Clause without for-public-use language:
[N]or shall private property be taken … without just compensationU.S. Const. amend. V. If one recalls that "taking" in the real property context—and most of the relevant property is real—can refer to any coming-into-possession-of without implying either involuntariness or government action, it is easy to see why public-use clause was added. Without it, the Takings Clause could easily be misinterpreted (and not necessarily, mis-!) as requiring that the price term of every private real estate deal must be approved by a court. Adding the for-public-use language to the Takings Clause is one of the simpler ways of barring such an interpretation and making clear that the clause only refers to involuntary takings by the government. That is sufficient to give the clause meaning and purpose. Trying to make it do anything more or else does violence to the language of the Takings Clause and leads to absurd or harmful consequences.
1 This, however, is not an argument available to those—including all proper left-thinking legal scholars and practitioners and sadly the U.S. Supreme Court—who have adopted an interpretation of U.S. Const. art. 1 § 8 cl. 3 which renders the remaining 17 clauses of U.S. Const. art. 1 § 8 meaningless surplusage apparently enacted only to fight the previously unreported severe ink glut of 1787. But they are largely not the ones to which this post is addressed.
