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USD Originalism Conference -- Third Paper: Ilya Somin on Takings for Private Use
Michael Ramsey

The third paper at the USD originalism works-in-progress conference was by Ilya Somin (George Mason University Law School) on Kelo v. City of New London and takings for private use.   Its central claim is that takings for private use (e.g., giving blighted land to a private re-developer) are precluded by the original meaning of the Fifth and Fourteenth Amendments.  Michael McConnell (Stanford Law) was the commentator.

This is the second chapter in Professor Somin's forthcoming book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press).  I don't think it is publicly available yet, but as it is fairly well developed I feel comfortable saying a few words about it.

The chapter is notable in reviewing state court decisions applying state versions of the Fifth Amendment takings clause in the early to mid-nineteenth century.  This is an important contribution and points the way for much future scholarship -- I think we are only beginning to understand what was going on in the early state courts regarding individual rights, and what state courts had to say may shed light both on post-ratification views of the language of the Bill of Rights and on the legal culture that formed the backdrop of the Fourteenth Amendment.  It's somewhat unclear, though, what conclusions we can draw from Professor Somin's research.

As to federal takings, the Fifth Amendment's text ("nor shall private property be taken for public use, without just compensation") seems reasonably clear.  First, the language seems to build in an assumption that private property could only be taken for public use.  True, the text does not literally say that, but the contrary reading would be absurd (why require compensation for public use takings but allow uncompensated private use takings?).  An assumption so evidently underlying the text seems to become part of the text, if the text is to be given its full context.  So I think Professor Somin rightly rejects the literalist argument of Jed Rubenfeld (see 102 Yale L.J. 1077 (1993)) to the contrary.  Second, "public use" seems on its face to require, well, "use" by the "public":  if the people (or the government as representative of the people) aren't entitled to do things on or with the property, as is the case when the property is given to a private entity, the amendment is not satisfied.  The fact that the public might benefit indirectly from the new private use (because, for example, it helps remedy a blighted area) does not make the "use" one by the public.

As Professor Somin recounts, most states had public use takings clauses paralleling the Fifth Amendment from the eighteenth century, and early practice seemed to conform to the obvious meaning of "public use."  Although sometimes property was taken and given to private entities, it was in an context where the public would have a right to use it after the taking -- for example, mill acts, by which land was taken by damming a stream to work a privately-owned mill, but the mill was required to be open to the public.  At this time, though, there apparently was not much state court litigation, so the interpretation of the Fifth Amendment rests mostly on its plain text.

As Professor Somin further describes, later state cases diverged -- some adopted a "narrow" view holding that public use meant use by the public, but others adopted a broader view that public use could be satisfied by indirect public benefits.  The former appears to have been the majority view. But the problem remains what conclusion to draw from that, once we turn to the Fourteenth Amendment and state takings.

Although Professor Somin does not put it this way, I think it depends on what one thinks of the privileges or immunities clause (which is where I assume most originalists would find a federal constitutional limit on state takings).  If the clause directly incorporated the text of the Fifth Amendment, then I think the result is clear.  The Fifth Amendment text itself is clear (as I argue above) and the mixed practice of the mid-nineteenth century is not enough to overturn it.

On the other hand, if the clause only constitutionalized deeply rooted practices (having significant overlap with but no direct correspondence with the actual text of the federal rights), then I think Professor Somin's claim is more problematic.  The divided practice he identifies seems not to show a deeply rooted right, even if the "narrow" view commanded a majority.  It seems doubtful that the minority of states adopting a broad view would have understood the Amendment as requiring them to conform their land use law to the majority approach.

In sum, this was an unusual paper in that it made me more skeptical of its claim than I had been before I read it.  I don't mean that as a criticism -- actually it's a tribute to Professor Somin's careful research and forthright reporting of his results.