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By AndrewHyman Posted in Analysis and Predictions — Comments () / Email this page » / Leave a comment »

A year ago, the Supreme Court decided the case of Kelo v. City of New London. To mark the anniversary, President Bush issued this excellent executive order to protect private property rights. Also, during the past year, 25 states have reportedly passed laws to protect private property rights in response to the Kelo decision, and three more are awaiting a governor's signature.

While I support today's executive order as well as the legislation enacted by all those states, still it seems to me that Kelo correctly applied the Takings Clause, which says that private property shall not "be taken for public use without just compensation." There is a healthy number of conservatives and originalists who agree that the holding in Kelo was proper, Jonathan Adler for example:

[W]hile I would like to read "public use" as a strict limitation on government use of eminent domain for a small set of purposes, there is little warrant for this interpretation in either the ratification history or the court's jurisprudence of the past 100 years or so.

More from Adler here. Of course, I have an open mind on the subject, but there is considerable evidence that Adler (and SCOTUS) were correct. Therefore, I really hope Kelo will not be a rallying cry in the judicial confirmation battles.

When James Madison wrote the Takings Clause in the Fifth Amendment, similar language had already been known for quite a while. For example, the Massachusetts Body of Liberties said:

No man's Cattel or goods of what kinde soever shall be pressed or taken for any publique use or service, unlesse it be by warrant grounded upon some act of the generall Court [i.e. the legislature], nor without such reasonable prices and hire as the ordinarie rates of the Countrie do afford.

"Cattel" meant beasts of any kind. It's very improbable that cattel would have been taken or borrowed in order to be made available for direct use by (or service to) every member of the public. Indirect use, and indirect service, were apparently contemplated.

Likewise, Madison explained one particularly relevant application of the Constitution's Takings Clause: in a sympathetic letter to an antislavery advocate, Madison proposed that the federal government purchase all slaves in order to free them. He observed, "Whatever may be the intrinsic character of that property [slavery], it is one known to the constitution and, as such, could not be constitutionally taken away without compensation." It made no difference to Madison that freed slaves would not subsequently be owned by the federal government or owned by the public. This understanding was put into practice in the mid-nineteenth century when the federal government took slaves from the slaveowners in Washington D.C. in return for compensation. Some might say that slavery should not be used to argue about how the Constitution ought to be interpreted nowadays, but I respectfully disagree; slavery was a horrible institution but it nevertheless teaches important lessons about how the framers understood related provisions of the Constitution. Those who argue that the government may only take property if the property will be put to use by the general public should bear in mind that this certainly was not the view of people like Abraham Lincoln:

The Constitution itself impliedly admits that a person may be deprived of property by “due process of law," and the Republicans hold that if there be a law of Congress or territorial legislature telling the slaveholder in advance that he shall not bring his slave into the Territory upon pain of forfeiture, and he still will bring him he will be deprived of his property in such slave by “due process of law."

This was part of the legal background in 1868 when the 14th Amendment applied the Takings Clause against the state governments. I suspect that the primary clause of the Constitution that forbids egregious takings of private property for private use is to be found not in the Takings Clause, but in the Thirteenth Amendment, which bars involuntary servitude.

UPDATE: Here's a detailed law review article by Nathan Sales about the original purposes of the Takings Clause. Sales points out that, prior to 1789, several states "further limited the government's power to expropriate private property by requiring that a taking be justified by 'public necessity' or 'the public exigencies.'" Of course, the U.S. Constitution does not contain that kind of limitation on congressional power (at least with respect to congressional power to govern the District of Columbia).

UPDATE #2: Susette Kelo has an interesting op/ed in the June 24 Washington Times.