« Walter Dellinger Writes . . . . | Main | The Start of the Ten Commandments Group-Blog »
Sunday, June 26, 2005
Which Clause?: Locating the "Public Use" Requirement
Kelo | Posted by Marty Lederman at 11:03 PM
Walter Dellinger suggests that it is more appropriate to view the requirement of "public use" as emanating from the Due Process Clause of the Fourteenth Amendment, rather than from the Just Compensation Clause of the Fifth Amendment (as incorporated by the Fourteenth). I happen to think that Walter is probably correct -- but I wonder what follows from this, and whether there isn't a good reason that property-rights advocates should be reluctant to look to the Due Process Clause for greater protection.
As for the merits of Walter's suggestion: It's worth recalling that there is no language in the Fifth Amendment (or anywhere else in the Constitution) that expressly requires that "takings" of property be for a "public use" or a "public purpose." The Fifth Amendment merely provides that takings that are "for public use" must be (justly) compensated. It might be fair to read this language as resting on an assumption that all takings are for public uses. This was, for instance, Justice Holmes's understanding in Mahon, where he wrote that the “protection of private property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation.” 260 U.S. at 415. However, it's not fair, I think, for a plain-meaning or original-intent constitutionalist [note: I'm not one] to derive a prohibition on non-public-use takings from the Just Compensation Clause. To be sure, Justice Thomas argues in his Kelo dissent that there is an "express" public-use limitation in the Fifth Amendment itself, relying principally on the theory that if the words "for public use" did not impose a distinct requirement, they would be surplusage. But I'm doubtful: As Jed Rubenfeld has explained, perhaps the words "for public use" were included in order to indicate that compensation is due when the public uses the "taken" property (in the sense of affirmatively exploiting some productive attribute of private property for a particular state-dictated service, in a manner “approach[ing] a taking-over or conscription of the relevant property for the mandated use," 102 Yale L.J. at 1150), but not when the public (i.e., the state) does something other than using the property, such as destroying it (see, e.g., Caltex; Miller v. Schoene) or condemning it or requiring that it lie fallow (see, e.g., Mugler; Central Eureka Mining Co.).
In any event, Ilya is absolutely correct to note that in the late-Nineteenth and early-Twentieth Centuries, the Court derived the "public use" requirement not from the Fifth Amendment's words (the Court not yet having recognized the Fifth Amendment as "incorporated" against the states), but instead from principles of due process (see, e.g., Missouri Pac. Ry. v. Nebraska; Thompson v. Consolidated Gas), or even from pre-constitutional postulates, such as Justice Chase's famous "take from A to give to B" dictum in Calder v. Bull. (See generally Mark Graber, “Naked Land Transfers and American Constitutional Development,” 53 Vand. L. Rev. 71 (2000) (historical survey of nontextual constitutional prohibition on transfers of land from “A” to “B”); John V. Orth, “Taking From A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm,” 14 Const. Comment. 337, 339, 344 (1997) (noting that in the heyday of laissez-faire, “taking from A and giving to B” became the prime shorthand to describe what was forbidden by “substantive due process”; but that after the demise of Lochner, such a “simple paradigm[]” became an “embarrassment[] as legal discourse”).)
It's notable, in this regard, that Justice O'Connor does not begin her Kelo dissent with the words of the Constitution, but instead with the famous Calder v. Bull dictum -- a dictum that "merely" indicates that because it is against "all reason and justice" to take from A and give to B, courts should not presume that legislatures have been given such powers or that legislatures have done any such thing. Of course, that notion -- that legislatures have not been afforded the power to effect transfers of property from A to B -- has been anachronistic in our legal system for quite some time, and is almost unrecognizable after enactment of the 16th Amendment and the development of the modern, redistributive state. But even if one agrees with Justice Chase that legislatures have not been afforded the power to effect some sorts of transfers to private parties, and even if one concludes that this absence of power isn't simply a matter of state law, but is also reflected in the federal Constitution, I agree with Walter that it is a matter within the purview of the Due Process Clause, which prohibits the rare "naked transfers" that cannot be explained by any rationale other than the desire to benefit discrete private parties at the expense of others.
But what would follow from this shift to the Due Process Clause? After all, under that clause, economic regulation is ordinarily subject to the deferential rational-basis test, which is precisely the test the Court did employ in Berman and Midkiff. As Justice Kennedy notes in his concurrence, the government does not always win: regulation of property is unconstitutional if it is "clearly intended to injure a particular class of private parties, with only incidental or pretextual public justifications." See also note 17 of the Stevens opinion, citing the "class of one" equal protection case Village of Willowbrook v. Olech. But the scrutiny the Court applies under the Due Process Clause is no more rigorous than the scrutiny applied in the modern public-use cases, including Kelo. Therefore, although I agree with Walter that the Due Process Clause is the proper "tool for the job," I wonder why he thinks the outcomes of the job might be different if only the Court were to use the appropriate tool.
Trackback Pings
TrackBack URL for this entry:
http://www.scotusblog.com/movabletype/mt-tb.cgi/568
Listed below are links to weblogs that reference Which Clause?: Locating the "Public Use" Requirement:
» Online poker from online poker online
I have found the best site to play Online Poker Online Bingo Online Casino [Read More]
Tracked on July 6, 2005 02:03 AM
» Phentermine from Phentermine
I have found the best online store to buy Phentermine [Read More]
Tracked on July 8, 2005 08:01 AM
» texas holdem from texas holdem
In your free time, visit some relevant information about texas holdem pacific poker [Read More]
Tracked on July 9, 2005 11:23 AM
» virtual casino from virtual casino
You may find it interesting to check out some information about online casino online casinos [Read More]
Tracked on July 16, 2005 10:52 AM
» online internet casino from online internet casino
Take your time to visit some helpful info dedicated to casino online jack black [Read More]
Tracked on July 18, 2005 09:03 AM
» blackjack variants from blackjack variants
Take your time to take a look at some information in the field of casino morongo casino on net tournaments [Read More]
Tracked on July 19, 2005 11:38 AM
» igt slot machine from igt slot machine
In your free time, visit some relevant information in the field of blackjack supplies roulette gambling [Read More]
Tracked on July 20, 2005 05:08 PM
» poker rooms online from poker rooms online
You can also visit the sites dedicated to texas holdem rules casino poker [Read More]
Tracked on July 25, 2005 07:48 AM
» throat pokers from throat pokers
You are invited to visit the pages dedicated to poker chip online video poker [Read More]
Tracked on July 25, 2005 05:34 PM
» mortgage interest rate from mortgage interest rate
Take your time to check out some relevant pages about loans home loans [Read More]
Tracked on July 29, 2005 01:44 AM
» mortgage calculators from mortgage calculators
You can also check out some relevant information in the field of payday advance bad credit [Read More]
Tracked on July 29, 2005 12:18 PM
» texas holdem books from texas holdem books
In your free time, check out the sites on texas hold em hand held game texas holdem poker strategies [Read More]
Tracked on July 30, 2005 09:19 PM
» strategies for texas hold em from strategies for texas hold em
In your free time, check out some relevant information dedicated to party poker 3 card poker [Read More]
Tracked on July 31, 2005 07:23 PM
» free strip poker games online from free strip poker games online
You may find it interesting to check some information on poker table online [Read More]
Tracked on August 8, 2005 02:27 PM
» empire poker from empire poker
Take your time to visit some relevant pages on pacific poker free poker poker games [Read More]
Tracked on August 10, 2005 02:02 PM
» online casinos from online casinos
Please visit some information in the field of roulette online casino [Read More]
Tracked on August 12, 2005 09:42 AM
» texas holdem poker table tops from texas holdem poker table tops
Take your time to take a look at some relevant information on holdem rule strategy texas [Read More]
Tracked on August 15, 2005 03:05 AM
» How Do You Play Texas Holdem from How Do You Play Texas Holdem
Please check some information in the field of download free texas holdem offline poker [Read More]
Tracked on August 23, 2005 12:21 PM
» tattoo from tattoo
tattoo [Read More]
Tracked on August 30, 2005 08:34 AM
» tattoo from tattoo
tattoo [Read More]
Tracked on August 30, 2005 08:35 AM
» fucking machines from
lesbian gloryhole gay deep purple smoke on the water torture ... [Read More]
Tracked on September 10, 2005 09:49 PM
» link online.musicbox1.com party poker from link online.musicbox1.com party poker
You can also take a look at some helpful info dedicated to online poker tools [Read More]
Tracked on September 14, 2005 02:34 PM
» marazzi from marazzi
Marazzi prin Omnitechgroup [Read More]
Tracked on September 13, 2006 10:23 AM
» incest cum from incest cum
incest cum [Read More]
Tracked on December 17, 2006 04:21 AM
» forum incest from forum incest
forum incest [Read More]
Tracked on December 18, 2006 06:51 PM
» mother and daughter incest from mother and daughter incest
mother and daughter incest [Read More]
Tracked on December 20, 2006 11:53 AM
» rivista tunning auto from rivista tunning auto
rivista tunning auto [Read More]
Tracked on January 12, 2007 02:33 AM
» free sexual oral blow jobs hand jobs from how can i suck my own penis
a baby is a messenger of peace and love [Read More]
Tracked on January 22, 2007 08:59 PM
» incest video from incest video
incest video [Read More]
Tracked on February 24, 2007 09:28 AM
» rape pics from rape pics
rape pics [Read More]
Tracked on February 24, 2007 10:46 AM
» best rape sites from best rape sites
best rape sites [Read More]
Tracked on March 14, 2007 10:57 AM
» movie incest from movie incest
movie incest [Read More]
Tracked on March 16, 2007 05:45 AM
» incest sex from incest sex
incest sex [Read More]
Tracked on March 24, 2007 01:05 PM
» rape movies from rape movies
rape movies [Read More]
Tracked on March 26, 2007 02:43 AM
» incest pics from incest pics
incest pics [Read More]
Tracked on March 27, 2007 06:09 AM
» incest pics from incest pics
incest pics [Read More]
Tracked on March 27, 2007 10:29 AM
» yagi antenna calculation from yagi antenna calculation
yagi antenna calculation [Read More]
Tracked on April 1, 2007 03:35 PM
» am/fm antenna from am/fm antenna
am/fm antenna [Read More]
Tracked on April 2, 2007 12:27 AM
» Incest movies from Incest movies
Incest movies [Read More]
Tracked on April 9, 2007 02:55 AM
» Rape Videos from Rape Videos
Rape Videos [Read More]
Tracked on April 23, 2007 01:52 AM
» Incest Porn from Incest Porn
Incest Porn [Read More]
Tracked on April 27, 2007 03:06 PM
» Incest from Incest
Incest [Read More]
Tracked on May 1, 2007 02:08 PM
» Rape from Rape
Rape [Read More]
Tracked on May 3, 2007 06:34 PM
» Incest movies from Incest movies
Incest movies [Read More]
Tracked on May 9, 2007 10:33 PM
» auburn alabama from auburn alabama
shit-happens 1413438 The auburn alabama [Read More]
Tracked on June 17, 2007 04:49 PM
» aol movie from aol movie
shit-happens 1413438 Relevant information about aol movie. [Read More]
Tracked on June 20, 2007 06:09 PM
» perennial flower from perennial flower
shit-happens 1413438 Relevant links for perennial flower. [Read More]
Tracked on June 21, 2007 10:04 AM
» Online Roulette Casino from Online Roulette Casino
I'm a great believer in luck, and I find the harder I work the more I have of it [Read More]
Tracked on June 9, 2008 06:43 AM
» Online Roulette Casino from Online Roulette Casino
I'm a great believer in luck, and I find the harder I work the more I have of it [Read More]
Tracked on June 9, 2008 06:43 AM
» valium from valium cheap mexican
valium cheap mexican [Read More]
Tracked on June 29, 2008 10:21 PM
» implication from implication
certainly all production morning save cos after press: krigopizp never realize have regard happy care cry! [Read More]
Tracked on March 17, 2009 11:27 AM
Comments
The standard of having the government "prove" the necessity of the public use for which private property is taken would, in theory, satisfy the dilemma of "permissive reading" of that clause to meet both Constitutional tests of "due process and public use." The fact that an arbitrary taking may be supported even with just compensation is to stretch the 5th Amendemet of the Constitution beyond its intent of the protection of private property. The permissive reading and the interpretations of recent years permits arbitrary and subjective action by government to do such takings, many of which are subject to undervaluation rather than overvaluation to prevent government from the arbitrary exercise of its eminent domain rights. If private property is unfairly and deceptively undervalued, the government (including its advantaged affiliates, if any) are seduced by potential gains that would not otherwise be available if the tests of "just compensation" are not met. The compounded advantage for government against private property owners is that used permissively, low valuations and due process violations produce enormous profits where few should be available encouraging takings.
Posted by: Pat R. at June 29, 2005 10:18 AM