The Right Coast

February 24, 2005
Takings and Textualism
By Mike Rappaport

Orin Kerr has raised some interesting questions about Textualism and the Takings Clause. Since I am supposed to have dinner with Orin soon, I thought I would respond to his concerns and give us something to talk about. Orin questions how a textualist can reach the conclusion that the Takings Clause prohibits government takings for private use. He says:

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." It seems to me that a good textualist would say that either the taking in Kelo was for "public use" and required compensation 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.
Orin asks a good question, one of the questions that original meaning textualists sit around and ponder when they meet. There are at least three possible ways that a textualist might derive a prohibition on private use takings from the Constitution:

First, one might conclude that a taking can only occur if authorized by an enumerated power and that the enumerated powers only permit takings for public use.

Second, one might conclude that a taking can only occur if authorized by the Necessary and Proper Clause (and an enumerated power) and that the public use requirement is derived from the term “proper” in that Clause.

Third, one might conclude that, although the enumerated powers and Necessary and Proper Clause would allow takings for private use, the Takings Clause prohibits such takings.
I believe that each of these interpretations is a plausible basis for prohibiting private use takings.

The first two are radically inconsistent with the existing understanding of how to read Article I, because the enumerated powers have been read very broadly and the term “proper” has been generally ignored. Nonetheless, it is entirely possible that people in 1789 would have said that the Commerce Clause, for example, did not authorize takings for private use. A private use taking was simply the kind of thing that the government was not allowed to do. Of course, it is a separate question how one defines public and private use. But if a use were deemed private, it might have been regarded as not a genuine regulation of interstate commerce.

The third possibility is that the enumerated powers convey broad enough authority to permit private use takings, but that the Takings Clause forbids such takings. There is nothing odd about this. While the Clause does not come right out and say this, it clearly implies it. In a world where everyone understands that private use takings are illegitimate and where language is included to require that compensation be paid for public use takings, it is obvious that the Constitution is prohibiting, not permitting, private use takings without just compensation.

Two questions can be asked about this. First, why did the Framers not write the Clause more explicitly to prohibit private use takings? Second, is inferring this implicit prohibition on private use takings consistent with textualism? As to the first question, while there are many possible reasons why the Framers might not have drafted it more explicitly, perhaps the most likely is that it was regarded as unnecessary. No one thought that a taking for private use was legitimate. If one had to make this explicit, then how many other possible contingencies would also need to be addressed? The rhetorical power of using general principles to protect rights would then have been lost.

But is this interpretive move consistent with textualism? While different people define textualism differently, it is certainly consistent with the original meaning textualism that I follow. Original meaning textualism is about what people would have reasonably understood to be communicated by a text. The text of the Takings Clause reasonably communicates that private use takings are not permitted. Even if one regards the context as doing much of the work here, that is not inconsistent with textualism so long as the text reasonably communicates the point.

This example should be contrasted with cases where implicit prohibitions are inferred even though the text does not reasonably communicate them. Consider Powell v. McCormick, where the Supreme Court construed the following language of Article I, sec 2: “No person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” The Court interpreted this language to implicitly prohibit Congress from imposing any additional qualifications on members of Congress. But, of course, this language does not say that, and it is not obvious, in the way that it is with the Takings Clause, that the Framers were intending to convey the idea that Congress would not have this power. (Of course, the result in Powell might be correct, but only if based on some other language in the Constitution.)

In the end, then, original meaning textualism can accommodate this implicit prohibition contained in the Takings Clause. But that does not mean that textualism permits anything. Sometimes – when the context is very clear – the text is fairly read as containing an implicit prohibition. Most other times, though, it is not.

Update: For other posts on this subject, see Stuart Buck, Eric Rasmusen, and Orin Kerr.