Andy and Mark — I am not challenging incorporation here. If anything, I think the takings clause is under-enforced against state and local governments. Rather, I am questioning whether it is fair to read a contemporary libertarian hostility to eminent domain — a hostility I share — into the clause. I am challenging the assumption that “nor shall private property be taken for public use without just compensation” means that federal courts should decide whether any given project constitutes “public use.” I am skeptical for several reasons.

First, the constitution does not say “private property shall only be for public use.” They could have said that, but didn’t. Why is the phrase there? Most historical research — including some done by conservatives — suggests it’s there to distinguish the taking of real property for public purposes from other ways in which the government takes private property, as through taxes, fines, and the like. Obviously compensation is not required in these latter cases, so the phrase “public use” makes clear when compensation should be due. So, the history doesn’t help as much as Justice Thomas suggests (which may well be why Scalia did not join the dissent).

Second, the Blackstone quote doesn’t help all that much, because it suggests property rights should never yield. The Founders rejected that view, but required compensation. Locke rejected that view as well, focusing on whether there was consent — as expressed through the legislature — when property was taken. This was his focus because the concern of the time was the unilateral taking of property by lords and the like. The idea, like it or not (and I do not), was that if the public felt it necessary to take land, and expressed that intent through an act of the legislature, then it was consented to, and it was okay (provided compensation was paid). [Note there is a parallel here with Locke’s view of taxation — it’s okay if there is consent, otherwise there is a violation of property rights.]

Finally, no one is saying that this means “anything goes.” Everyone accepts that a naked transfer from A to B is problematic, and the majority opinion reiterates that view. The problem is when the transfer is not so naked. In such cases it is reasonable to argue that state and local governments are due a fair amount of deference from federal courts and that the burden is on those who want the federal courts to intervene. I know this means that lots of rent-seeking will take place. The lack of substantive due process protection of economic liberty allows for rent-seeking too. Unfortunately, whether a legal rule facilitiates rent-seeking is not the basis for deciding its constitutionality, nor is the fact that it is “easier” to go to court than win through the ballot box.

A final note: I don’t like my (somewhat tentative) conclusions. I really don’t like them. But the more I’ve dug into the history and background of the takings clause, the more I’ve been forced to question the constitutional basis for a more libertarian reading of “public use.” Unfortunately, that’s a consequence of taking text and original meaning seriously. Sometimes it will lead you where you’d prefer not to go.