by Matt Barr

Kelo and the Takings Clause

The Kelo oral arguments were while I was away, and lots of analysis was posted while I was away, too. So I haven't blogged about it. But Orin Kerr at Volokh had a fascinating post on the Takings Clause and textualism Wednesday:

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."

I would have been more careful with the "would seem to be allowed by default" -- see U.S.Const. Am. IX -- but beyond that, the argument is irrefutable. Or utterly silly, smarmy, narcissistic preening:

[T]he Constitution is not required to be ... nonsensical....

A related saying is that just because Article I only refers to "Armies" and "a Navy" doesn't mean the Air Force is unconstitutional. There's honest interpretational debate, and then there's just being snide....

Had anyone suggested to the Framers that it might be constitutional to seize Monticello from Thomas Jefferson to give it to George Washington just because Washington might pay more taxes on it, they would have used far harsher language than "utterly silly."

The Ninth Amendment shouldn't be as complicated as it is, but you go to court with the precedent you have, not the precedent you would wish for. I think though that everybody can or should agree that the Ninth Amendment says that the States and the people have rights that are not enumerated in the Constitution. ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.")

That established, there may very well be -- I would go further and say, without narcissistic preening like Kip's, that there is -- a fundamental right not to have the government, or anyone, forcibly take your property for private use, with or without just compensation. Where constitutional analysts go bad is in thinking that any and every fundamental right, even unenumerated ones, can be enforced under the constitution.

Kip seems to be saying that whether or not the constitution says property may not be taken for private use, it does. "Utterly silly," and unserious.

Returning to the more intriguing and less ostentatiously clever line of inquiry, then, given that the Fifth Amendment does not by its terms prohibit takings for private use, where do Kelo and those similarly situated go from there? The Supreme Court heard the case after the Connecticut Supreme Court found for the city of New London, so chances are they've no recourse under their state laws or constitution.

It makes many lawyers' heads explode when there's a possibility that someone may be getting a raw deal but that nobody thought to make a law against it. Most often, they'll run to court and argue that this law or that constitution actually does say it's prohibited, even if it doesn't, really (Kip's tack, though Kip isn't by any means alone). Sometimes, lawyers and judges will try to fit a square peg into the round hole of the clause most closely resembling the case at bar. Thus Dahlia Lithwick reports that at least Justices Kennedy and Breyer seem to be trying to decide whether a taking for private use when the owner doesn't want to sell can ever result in "just compensation," which is as "utterly silly" as arguing that the Fifth Amendment prohibits taking for private use altogether. Points for trying, I suppose.

The sad fact of the matter is that Ms. Kelo may have no recourse, but that her plight will result in laws prohibiting the practice in the future. I'm avoiding saying "hard cases make bad law," but maybe I shouldn't. The plight of Kelo and her neighbors may not find redress in the laws or constitutions that we currently have on the books, and maybe that's because the folks who wrote them thought it was obvious enough not to have to pass a law about it. But we inch closer to judicial tyranny (or, more aptly, fail to inch away from it as it exists today) when we decide we feel sorry for somebody and shoehorn them into a constitutional provision that isn't on point.

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