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Private takings

Michael Rappaport writes, in answer to Orin Kerr’s question about private takings, “why did the Framers not write the Clause more explicitly to prohibit private use takings…? [I]t was regarded as unnecessary. No one thought that a taking for private use was legitimate.” Yes, and we know that because they said that “[n]o person shall be...deprived, without due process of law.

Properly understood, the Due Process Clause is a prohibition on private takings. The Fifth Amendment says, property shall not be taken for private use (the Due Process Clause) and if it’s taken for a public use, we’ll pay just compensation (the Takings Clause).

Takings and Textualism

The Fifth Amendment's Taking Clause reads: "Nor shall private property be taken for public use, without just compensation."  What should a textualist take this to mean?  Could it mean what Professor Kerr suggests:

The text of the clause says that if private property is taken for public use, then just compensation must be paid. The Constitutional text doesn't address takings for private use at all. Not only would such a taking seem to be allowed by default, but the Constitutional text doesn't even seem to require the government to pay just compensation for it. The text doesn't say, "Private property shall not be taken for private use, nor shall private property be taken for public use without just compensation." It only says "Nor shall private property be taken for public use, without just compensation." Obviously there are good policy reasons why we might not want the Court to read the text this way, and there are also reasons why someone might or might not be a textualist. Still, if you're a textualist it seems that you're kinda stuck with that reading.

Quite frankly, I'm much too young to be a "textualist" or anything other than Mike.  But as someone who takes seriously the Constitution's text, I offer my response.

A textualist still has basic assumptions when reading the text.  One of these is that Congress is limited to enumerated powers.  The Bill of Rights was not theoretically necessary, see Federalist No. 84, and if anything, says: "Congress you can't do these things anyway, but just in case you decide to get out of line, we'll preemptively remind you that you really-really can't do these things." 

Under the reading of the Takings Clause Professor Kerr proposes, the Bill of Rights would enumerate further powers, since in not excluding private takings, it must therefore allow them.  (Expressio unius est exclusio alterius).  Instead, the text of Bill of Rights should be read as further limiting Congress' already limited power.

Thus, whether Congress has the power to take private property for private gain without paying just compensation should be answered elsewhere, e.g., does the Commerce Clause give Congress this power?  The answer might be that Congress indeed, may take private property for private gain without paying just compensation, but if it does, the power comes not from the Takings Clause.

I realize that this form of textualism has its problems, as how can we determine what is a "basic assumption"?  The 11th Amendment cases are an example of this problem -- It's "ahistorical literalism," according to Justice Scalia, to read the 11th Amendment literally, because states' immunity from suit is, at least to 5 members of the Court, a basis assumption of the Constitution.


UPDATE: Stuart Buck made similar points before I published this post, though I hadn't read his entry until now.

Deuces and Federalism

Lawrence Taylor, an expert (perhaps the expert) on DUI law, has an excellent post entitlted "The Future of DUI."  Among many ominous predictions is this one:

Federal Presence
The Past:  DUI laws have always been a state-prescribed crime.  With the prompting of special interest groups like MADD (Mothers Against Drunk Driving) and the desire of politicians to curry favor with voters, this has gradually changed.  Using a "carrot and stick" approach with highway funds [South Dakota v. Dole, the famous Spending Clause decision, upheld this practice], the federal government has forced states to change their laws and penalties in such ways as:  "per se" laws; .08% BAC; "zero tolerance" for drivers under 21; automatic license suspensions; standardized field sobriety tests; federally approved lists of breath testing machines.
The Trend:  The federalizing of a traditionally state offense.
The Future:  With the use of the Constitution's Commerce Clause, DUI laws and penalties will become "federalized".  However, without the ability (or inclination) to arrest and prosecute these crimes in the federal courts, the states will be left to continue processing them in their own courts or administrative hearings.

If Congress did federalize DUIs, I suspect that things would get either much better or much worse for alleged DUI offenders.  Federal judges would be miffed at having to decide DUI cases.  Thus, they might actually start interpreting the Constitution properly, which would allow them to kick these cases out of court, or they might craft procedures designed to turn and burn DUI cases as quickly as possible.  But given the states' current love affair with DUIs - which are great revenue generators for the state - I doubt they'll ever be heard in federal courts.

What I expect Congress to do is federalize the collateral consequences of a DUI conviction.  That is, a DUI conviction will preclude someone from obtaining many of the licenses issued by federal agencies, and a DUI conviction will likely prevent someone from obtaining federal employment.

Anyhow, for you should read the whole post, for predictions from someone who actually knows (instead of, like me, who is merely speculating) the path of DUI laws.

I Was A Court TV Wannabe

It took a long time to detox.  For months, I missed the limousine rides, the breathless chatter in the glare of the television studio lights. I even harbored fantasies of chucking the law and devoting myself to chatter. Truth?

I was a Court TV junky. My drug of choice? Catherine Crier.

It started easily enough. I once represented a woman notorious enough to be the talk of the airwaves.Sneaking into Yale One day the phone rang. Would I appear on television? You bethca I would. I am a media whore, eager to spread my lips.

The limo arrived and I was whisked to New York City. A quick stop in a make-up room, and wham, bam, thank you, Ma'am, I was sitting pretty on Court TV. And there was Catherine Crier, acting as though we were long-lost friends. She has the easy familiarity that comes of prime-time TV; she can read a teleprompter over your shoulder, look you in the eye, and actually make you feel welcome.

I was invited back thereafter to talk about cases not my own. Here's how it works. You get the call. Can you appear on such and such a day? Sure, you say, cancelling court appearances. A facsimile arrives describing the case de jour. You read the fax on the limo ride. A pit stop in the make-up room, and then you're whisked into the studio. There sits Ms. Crier caked beneath enough makeup to cover the San Andreas fault.

You opine about a case you know little about, trying to be witty and urbane. Catherine breaks sound barriers with cheery upward inflecting sentences. You skim the surface of the day's events and then, just as quickly, you are whisked from the studio. Done opining for the day.

I confess. I was hooked on the adrenaline of it all. But then they dumped me like a cold fish. No invitations back; not even a return call from the young woman who arranged appearances.

For months I moped. Did I talk too much? Probably. Did a secret enemy repay an old debt by poisoning the well? Probably -- after all, I did once ridicule a certain high-flying Connecticut lawyer for losing a case, and he is a darling of the New York media. Maybe I am just not photogenic enough.

But I've detoxed now. I think the Scott Peterson case helped me do that. Eight hundred reporters at the trial? Why? The case raised no issue not common to just about any domestic homicide claim.

But the case did have hype. Catherine and company needed chatter, and they descended en masse, yack, yack, yacking their way through endless hours. And the people watched, transfixed, all addicted to the quick illusion of familiarity with those in the midst of great events.

I have detoxed now, I think.  It's been more than one year and the bright lights are a distant memory, as is my fleeting fame. Good bye, cruel Catherine, I barely knew ye. I'll stick to actual courtrooms and far less demanding requirements of the printed word.

More on the Ninth Amendment

Mr. Pattis makes an excellent point about the Ninth Amendment, which I believe is the most important of all the amendments. Several months ago there was quite a blog fight going on between Freespace, Southern Appeal, and other blogs as to its meaning. (Parts I, II, III, IV, V, VI, VII, VIII, IX, X)

Simply put, the Ninth Amendment is explained by (among other things) Madison’s concern that the Bill of Rights must “be so framed as not to imply powers not meant to be included in the enumeration.” Madison and others were understandably concerned that if you said people have a right to A, B, and C, but left out D—possibly out of simple inadvertence—that people would then assume that D was intentionally left out, and therefore, that you don’t have a right to D. In Hamilton’s words,

[Federal officers] might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.

The Ninth Amendment therefore represents the continuing validity of our natural rights—just because the Constitution does not mention the right to run barefoot through sprinklers, doesn’t mean you don’t have that right.

Where do we look for guidance, then, as to whether an asserted right—like the right to choose your own death—really is a right? To political philosophy, and the best guide to that political philosophy is the Declaration of Independence. The political philosophy of the Declaration holds that we have certain rights which no just government has the authority to take from us—including the right to liberty. As Randy Barnett has recently explained at length, the existence of this right means that the burden must always be on the government to justify any curtailment of that liberty. And the Declaration explains how such a justification is to be performed: since government exists “to secure [our] rights,” any curtailment of liberty must be justified, not in terms of some alleged social “benefit” from curtailment, but in terms of the protection of individual rights. Thus, laws against murder or robbery are justified, while laws against private, adult, consensual sexual activity, are not.

Now, when it comes to suicide laws, the issue becomes a little bit more complicated. The Declaration holds that we “are endowed by [our] Creator with certain unalienable Rights, that among these are Life.” The complication is that word unalienable. According to the political philosophy of the Declaration, each person owns himself in life estate: he does not own himself in fee. This is why our rights are unalienable—we cannot give away our rights to life, liberty, and the pursuit of happiness, no matter how much we may be misled into wishing to. We therefore have no right to commit suicide. As Locke explained,

[T]he legislative…can [not] possibly be, absolutely arbitrary over the lives and fortunes of the people…. [It has] but the joint power of every member of the society given up to…[the] legislator…and nobody has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another…. [H]aving, in the state of Nature, no arbitrary power over the life, liberty, or possession of another, but only so much as the law of Nature gave him for the preservation of himself and the rest of mankind, this is all he doth, or can give up to the commonwealth, and by it to the legislative power, so that the legislative can have no more than this.

A very plausible case can be made, then, that our natural rights do not include the right to commit suicide. I myself do not agree with this—I believe that we do own ourselves in fee, and that we do have a natural right to commit suicide—but it is not clear that the Ninth Amendment, even if properly applied, would protect such a right.

The Gift That Keeps On Giving

In both state and federal courts the fate of a lawsuit can turn on the not-so-tender conscience of a judge. Bring a Fourteenth Amendment claim and submit to the "shocks the conscience standard."  It takes a lot to shock a federal judge.

It also takes a lot to outrage a state-court jurist. The tort of intentional infliction of emotional distress, or outrage, as it is called in some states, requires extreme and outrageous behavior, behavior outside the bounds of that tolerated in a civilized society.

In Chicago, fellating lovers are now on notice: It's not all right to convert passion's product to procreation.

Some tawdry facts: Two physicians had a hot and heavy affair six years ago. It ended badly when male doctor learned his amore was still, in fact, married at the time all the sparks were flying. He ended the affair.

But Hell, dear reader, Hell hath no fury like a woman scorned. The two lovers had, well, made love of a kind. On several occasions he had been fellated by she of oh-so voluptuous lips.

Two years after the affair ended, she sued him for paternity, and tests confirmed that he was a daddy. How, oh, how had she become pregnant?  Call it radical self-help.

The Illinois Appellate Court ruled that these facts support a claim for emotional distress. However, it did uphold dismissal of the man's claim for fraud and theft.

"She asserts that when plaintiff 'delivered' his sperm, it was a gift -- an absolute and irrevocable transfer of title to property from a donor to a donee," the decision said. "There was no agreement that the original deposit would be returned upon request." Dynamo Hum

What's God Got To Do Do With It?

Am I missing some larger point, some distinction with difference lurking just beneath the surface of things? Or is the truth staring me straight in the face, daring me to state it?

There seems to me an awful lot of existential tap-dancing around the topic of gay marriage. As though there were any legal principle supporting the notion that people should be treated differently because of accidents of libido.

Connecticut lawmakers are patting themselves on the back for being only half coward. The state's Judiciary Committee approved a bill that would give gay couples almost as many rights as straight couples. I can marry my wife, but a gay man or woman seeking to wed would get second-class status in a so called civil union.  Civil union

Why not just print yellow Hs and require gay people to have them embroidered on their clothing?

Oh, it is progess of a sort to see Connecticut on the cusp of joining Vermont as the only other state to recognize second-class status for gay men and women. Massachussets last year became the first state to recognize gay marriage, after its Supreme Court showed uncommon courage declaring a ban on gay marriage unlawful. Uncommon Courage

No reading of the equal protection clause supports the notion that homosexuals get some rights and not others. Only prejudice carries that freight.

Every public policy goal that supports marriage for heterosexuals applies to those bending the lines of gender. Stable families, estate planning for couples with life-time commitments, a sense of respect for the intimate choices defining us. Why not accord these to all people?

The reason. Call it the dormant exception to the First Amendment. We can't establish religion except when a religious preference is so nearly universal as to be invisible.

Marriage, we are told, is a sacrament. God wants it, or wanted it, that way.  At least that is what the Catholic Church, many of whose priests appear to have libinal issues all their own, says. So do the fundamentalist Christians. 

Last I knew every man or woman in the United States was free to worship a fundamentalist God or to pay obeisance to the Pope. The state cannot, and should not, prohibit such worship.

But neither should the state stand in the way of marriage between consenting adults. The bonds of affection are as real and enduring between heterosexual couples as they are between homosexual couples. Any couple should have the right to stand on an altar or court house step and to declare to the world life-long fidelty to the love of their life.

Civil unions are not really progess at all. They are mere playing at affording equal protection to all. Sort of like giving slaves weekends off and calling it emancipation.

The Forgotten Ninth Amendment

Here's a quick Constitutional law quiz: Name the last case in which the United States Supreme Court ruled that the Ninth Amendment was a substantive limit to the reach of the Government power.

Having trouble? Let's change the angle of visions, then. Name the first.

If you are stumped, there is a reason. The Ninth Amendment is a dead letter in American law. If there is a case in which a majority of the Court has ever given the Amendment teeth, I missed it. 

The United States Supreme Court agreed this week to hear the case of Gonzales v. Oregon, a federal challenge to Oregon's physician-assisted suicide law.  The law was upheld last fall by the Ninth Circuit. In Oregon, a doctor may help a terminally ill patient die. This is a classic example of a state's exercise of its police power to assure the health and welfare of its citizens.

How did the federal government stick its nose under this tent flap?

The feds are pressing an interpretation of the federal Controlled Substances Act that limits the use of such substances to "legitmate medical purpose." Doctors who help terminally ill patients die violate that act, saith Uncle Sam. Except, of course, when the Government wants to kill someone, in which case it is all right. Side note: Do death row inmates have a right to die? Devil's Advocate

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

That's the Ninth Amendment. It speaks of a government of limited powers, and of a free people yielding only so much authority over themselves as has been expressly granted. It reminds the Government that silence is not an invitation to tyranny. Put another way, just because only certain rights are referred to in the Bill of Rights does not mean that we have forfeited everything else to the State.

The Oregon case is a perfect case to test the Ninth Amendment. I hope it is briefed and pressed. It is obscene to be required to petition the Government for the right to die. Death is, alas, akin to a duty; it is the price Nature exacts for the joy of living.

A right to die? Silly. Rather, by what right does the Government say live you must? 

Hiding from the Truth?

The law is life's great board game. You and I are tokens; the rule of law defines what we can do, and what we can do to one another. Privileges, like immunities, remove pieces from the board, and disrupt life's game. They should be created sparingly, and perhaps not at all for reporters.

Here is how you can talk to the press without ever leaving your fingerprints on the story.

Background Only. You call a reporter to relay some incredibly juicy gossip. You are neither to be quoted nor is the information to be reported as fact. You are simply steering a reporter in the right direction. Call it the non-criminal proffer agreement: you spill your guts, the press can't use it, except to develop other leads.

Not for Attribution. Yack away to your heart's content. You may be referred to as an unnamed source, but the material you yield may not be attributed to you. Your information may be reported as coming from a "knowledgeable source," or some such.

Off the Record. Be your own existential stenographer. Speak your piece, and then press the erase button. Nothing you say can appear in print.

Who created the rules for this game? The press. Who polices it? The press. Question: To whom is the press accountable? Answer: No one. Hello. Last I checked neither Rupert Murdoch nor Arthur Ochs Sulzberger, Jr., enjoyed sovereign immunity. Those states clamoring to create new privileges ought to reconsider. new privileges

Magic, isn't it, all this bobbing and weaving with the truth? Why shouldn't reporters be compelled to reveal their sources? We're not talking here of making them 'fess up to every anonymous caller. We are talking about their being required to honor subpoenas.

I don't buy the creation of journalistic privileges. They are another obstacle to the discovery of the truth in a court of law, and they make it too easy to snipe without consequences. Not long ago, a client of mine, a former prosecutor, was accused by an unnamed "source" within Connecticut's Division of Criminal Justice of representing defendants while still on the payroll as a prosecutor. It is an outright lie. I asked the reporter who told him than damaging piece of tripe. double-dipping  Response? I can't tell you. Oh, but it can be printed to the damage of my client's reputation?  I must now elect whether to sue John Doe, and then seek to compel the reporter to tell me the name he now refuses to yield.

One can love the First Amendment and not embrace jouranlistic privileges. How do you commit to telling the truth but then refuse to tell the truth when summoned to a court of law?

There are exceptions even to the attorney-client privilege, one the law's most sacrosanct. There should be no blanket privilege for the Fourth Estate. Like the rest of us, reporters should be required to honor oaths in the adversarial search for truth. To do otherwise is to say that the press ought to be trusted simply to police itself.

The Death Penalty, Nukes and Revenge

France and Great Britain adopted the theory of "mutual assured destruction" during the Cold War but nonetheless strictly oppose capital punishment.  MAD, is pretty simple to explain -- If you nuke me, I will nuke you, even if the only possible outcome is that all of us die.  Are these consistent positions?  Professor Yin suggests they are not.

In Disposable Deontology: The Death Penalty and Nuclear Deterrnce, 51 Ala. L. Rev. 111 (Fall, 2003), the Professor asks us to imagine that Bin Laden is captured in France or Great Britain.  Before the United States can extradicte him, we are told that we must promise not to execute him.  This is not unlikely, since, according to Yin:

In the last four years, there have been at least nine high-profile death-eligible suspects, including four alleged Al Qaeda terrorists, whom the United States has sought to extradite; Europe or Canada has required the United States to waive the death penalty in each case. 

However, the same European countries that so vehemently oppose capital punishment have adopted the MAD policy.  Under MAD, if someone fires a nuclear weapon at Western countries with nuclear arms, they will unload on them. 

Although Professor Yin addresses all of the arguments that these countries might proffer for the incongruity, his death blow is this: "[I]f the other side has launched enough nuclear weapons to annihilate a country, that country gains nothing from launching against only the remaining nuclear forces."  In other words, if Great Britain is going to be blown into the ocean, it launches its own bombs - that will surely kill innocent civilians - only out of revenge.  Thus:

It seems incongruous that a country possessing nuclear weapons--and threatening retaliation in response to a nuclear attack--would claim the higher moral ground with respect to executions, and, in fact, there are sound reasons to question that moral integrity[ ].

There is a lot more to the article, which unfortunately is not available online, even though I would really like to link to it.  But the thesis is interesting.  What do you think -- Is it inconsistent for a country that opposes the death penalty to also adopt a nuclear policy of mutually assured destruction?