Here’s the video of (most, but not all of) the recent session featuring four lawprofs discussing “Originalism and Constitutional Property Rights” at the Federalist Society lawyers’ meeting.
Interesting debate, all about the text of the Fifth and Fourteenth Amendments, the “original public meaning of the Takings and Due Process clauses, and all that heady stuff. Here were our major takeaways:
- Professor Somin argued that decisions like Kelo and Berman are not consistent with the original public meaning of the terms of the Takings Clause.
- Professor Merrill asserted there’s a good textualist argument that the Public Use Clause is not a limitation on the government’s power to take. If there’s a private benefit taking, that is best handled by other parts of the Constitution (such as due process).
- Also, from Prof. Merrill: between Kelo and the backlash, the backlash was the “true constitutional moment.”
- Professor Lazarus thought the regulatory takings doctrine was made up by Justice Holmes in a “throwaway” in Penn Coal, and textually, the Fifth Amendment was limited to physical takings, Lucas was a litigation “bait and switch,” and the decision “ludicrous.” Most land use regulations are more “givings” (our word, not his) than takings, because they enhance value. He stressed the point that he wasn’t saying property owners injured by regulation should not have a remedy; it’s just not in the Constitution. Knick made the regulatory takings case worse because it is now “open season” on governments for takings claims, and attorneys fees and costs.
- Professor Claeys stressed that the focus should also include the original public meaning of the Fourteenth Amendment (either the Due Process or the Privileges or Immunities Clauses), and that it is not a universal understanding that regulations add or take away value or use from property owners. Different property owners may have a different view of the same regulations; for example, owners along the St. Croix River may like the enhanced views the regulations protect, while others (the Murr family) may place more value on use and sale.
After listening to this vigorous and balanced debate about the meaning of the words in the Takings Clause, we wanted to see the actual words in the Takings Clause. So we paid a visit to the National Archives.
Eternal vigilance is the price of liberty
Encased in glass in the dimly lit rotunda, there they are in their faded glory. Not in “Article Five,” but rather in “Article Seven” (since the first two amendments were not adopted).
If you squint hard enough, you can just about make out the words we all know, “nor shall private property be taken for public use, without just compensation.”
(The guard was not amused when we pressed our nose up against the glass to make out our favorite text in the Constitution.)
