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12/18/2012

Can the Federal Government Take State Property?
Mike Rappaport

Recently, Mike Ramsey had an interesting post on the Supreme Court case (Arkansas Game and Fish Commission v. United States) holding that a temporary flooding of land can be a taking.  The case also stated that state government property can be private property under the Takings Clause.  The Court based this conclusion on a 1893 precedent.

Mike argues that state owned property is not private property and therefore the decision cannot be justified on originalist grounds.  I am sympathetic with his conclusion, but I am not sure he is right from an originalist perspective.  As I have been trying to argue in recent posts, determining the original meaning is complicated.

First, originalist conclusions turn on how language was used at the time, and I can imagine a plausible usage that would render state owned property to be private.  Perhaps private property meant not property own by nonstate actors.  Instead, perhaps it meant the type of property owned by nonstate actors in contrast to the type of property held by states.  Thus, ownership of a piece of land in fee simple would be private property, even if owned by a state, but a state’s control over the oceans or the air or oyster beds would not.  Those latter types of property are public property as opposed to private property.  I don’t know if this was a meaning of private property at the time of the Constitution, but it might have been.

Second, even if the original meaning of the Takings Clause does not protect state owned property, such property might still be protected through another part of the original meaning.  According to a paper by Will Baude forthcoming in the Yale Law Journal, the federal government may not have power (under its enumerated powers) to take private property.  Instead, the federal government can acquire property by condemnation only if the state within which the property lay authorizes the taking.  Apparently, this scheme of cooperative federalism was followed until the 1870s.  Perhaps the federal government’s lack of power to take property extended not merely to private property, but also to property owned by the state.  If that is true, and if Will is otherwise right, then the federal government might not be able to take state property, not because it is private property under the Takings Clause, but because the federal government does not have power to do so.

Update: Seth Tillman of the National University of Ireland at Maynooth notes that Justice Story's famous concurring opinion in the 1819 Dartmouth College case described the property of a municipal (that is government) corporation as private property:

It may also be admitted that corporations for mere public government, such as towns, cities and counties, may in many respects be subject to legislative control. But it will hardly be contended that, even in respect to such corporations, the legislative power is so transcendent that it may, at its will, take away the private property of the corporation or change the uses of its private funds, acquired under the public faith.  (Emphasis added) 

(Cross Posted at the Liberty Law Blog)

Michael Ramsey adds: I agree with pretty much everything Mike Rappaport says here.  In particular, I agree that it's important not to assume that the original meaning is the modern meaning.  For example, a core part of my scholarship in foreign relations law rests on the idea that "executive power" in eighteenth-century terminology included some degree of independent power over foreign affairs: that is not necessarily part of the modern definition of "executive" power (depending on whom you ask) but I think it very apparent in Locke, Montesquieu, Blackstone  and various writing from pre-1789 American sources.

At the same time, though, English has been a relatively stable language, as a general matter, since the late eighteenth century (and especially since the mid-nineteenth century).  Reading sources from those times, one does not encounter all that much that sounds odd (in the way the one does in reading English from Shakespeare's time, or even more from, say, the thirteenth century).  As a result, I think it reasonable to begin with the idea that words meant, at the time of ratification, roughly what they mean today.  Of course that can be refuted, or elaborated, by historical evidence, as in the case of "executive power."  But I don't think we should see ourselves as unable to comment on likely original meaning in the absence of specific evidence of meaning from the ratification era.

So I feel comfortable saying that I'm highly skeptical that "private" property included government property in 1780s language while at the same time acknowledging that, of course, it might have and someone might come up with the evidence that it did -- in which case I would change my view.  (Incidentally, I don't think Professor Tillman's evidence is enough, because municipal corporations had an uncertain intermediate and evolving status in that period; even if their property was called "private" that may only show that they were thought of more like truly private entities, rather than showing that state government property was called "private").