Love's Lockner Lost

It must be about text, because if it was all about precedent, I'd still have Lockner. So let's jump into the text, Publius, if you dare.

After explaining that life, liberty, and property can only be taken away upon due process of law, the Fifth Amendment goes on to provide that "nor shall private property be taken for public use, without just compensation." As Professor Merrill gladly admits in his class, this is a very curious phraseology. The Constitution does not grant states the right to take property for public use, so long as it pays just compensation. Rather, the Constitution, assuming that some public organs may take property for public use, requires that when they do so, they pay a just compensation. This is not an affirmative grant of power to the states, but rather a demand for compensation when the state exercises powers the constitution seems to already assume exist.

What can we make of this? One possibility would be to read the Constitution to subtly be saying that while a public use requires just compensation, a confiscation of property for non-public uses requires no compensation. That would be a pretty ridiculous construction, since (if nothing else) it would defy the normal sanctity of private property extolled in the immediately preceding clause. Not to mention, using a non-textualist argument (sorry Publius, sometimes you have to), it would make no sense to require state legislatures to remember the property owners when it acts in the public interest, while allowing legislatures to abuse private persons if they act for totally irrational (or corrupt) reasons.

So that's out. The next plausible reading would be that the Constitution understands that private property may be taken for public uses (maybe it thinks this because it makes no sense under the due process clause to allow the taking of private property, by a legislature, with no public benefit. Such a reading though would only continue to infuriate my good friend Publius, and he has been very nice to me this week, so I wouldn't want to do that). This would mean that the Takings clause itself actually has nothing very interesting to say about when a legislature has the power to take property for the public use, but would only speak to legislative responsibilities should such an event occur.

Personally, Lord Coke blames law schools for all the confusion. By naming it the Takings Clause, academics (probably consciously) have tricked generations of lawyers into thinking this clause regulates the Taking of property. In point of fact, it seems to only be concerned with Just Compensation (maybe that name is not as catchy).

So, if the Takings clause provides no insight into when a legislature may do what it purports to be doing in the public interest, we are forced to rely on some combination of Substantive Due Process with state constitutional doctrine to understand the limits of state legislative powers. I am happy to be a good textualist and understand that if the Kelos live in a state where the state constitution explicitly grants the state the power to take private property whenever it wants to at its sole discretion, then the Kelos have to live with that. In fact, the 9th and 10th amendments specifically demand the federal government respect this interaction between a state and her citizens (so long as the state has a Republican Government. Cool how all the stuff works together, right?).

However, if the state constitution is silent on the issue, we need a rule of construction for understanding the power of the state legislature. There is a federal question here, since the Constitution, in the general case, stands up for the property rights of the individuals. Therefore, it is not strictly a matter of state law, for resolution on independent state grounds. Once the federal courts have a right to be concerned, and once the matter is ambiguous, the Federal Courts should be welcome to use rules of construction (Scalia himself relies heavily on such judicially-created canons). In this case, where constitutional norms are at issue, it makes sense to use the constitution to help us develop canons by which we will interpret ambiguously presented powers of state government. That process, when reduced to short hand, is called substantive due process. It is keenly aware of the text of the Constitution, and the interaction between state and federal governments.

As a parting matter, ask yourself this. The end of Lockner came from a desire to make progressive labor reforms work (bakers, etc.). The same motivation led to the New Deal, which the Court only approved under Duress. If, as a principled matter, the original constitution worked against the New Deal reforms, and if Lockner was abandoned for the same policy objective that motivated the FDR duress campaign, isn't it possible that Lockner had it right the whole time, and Nebbia killed it for illegitimate reasons?