[Volokh] Ilya Somin: Why the Takings Clause Requires Compensation for Government Takings of the Property of Innocent People during Criminal Investigations:

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Posted by Ilya Somin:
Why the Takings Clause Requires Compensation for Government  Takings of the Property of Innocent People during Criminal Investigations:
http://volokh.com/archives/archive_2008_04_27-2008_05_03.shtml#1209796895


   I think my debate with Orin over the Takings Clause and seizures of
   property during criminal investigations is likely to enter the realm
   of diminishing returns soon, if it hasn't already. So in this post I
   will merely recap my key points and respond briefly to Orin's
   [1]latest post.

   I argued in [2]my original post that the Takings Clause, which states:
   requires "just compensation" for all "takings" of "private property"
   for "public use" requires compensation for the taking of innocent
   persons' property during a criminal investigation. The textual basis
   for this is very simple: that the Fifth Amendment does not distinguish
   between takings of property for use in a criminal investigation and
   takings for other public uses. The text simply states: "nor shall
   private property be taken for public use, without just compensation."
   There is no exception for takings related to criminal investigations
   or any other takings of any kind. Thus, it is reasonable and natural
   to assume that the text requires compensation for all takings alike,
   whether they occur during criminal investigations or not. [3]Orin then
   argued that this interpretation of the Fifth Amendment is inconsistent
   with the text of the Fourth Amendment, and [4]I tried to explain why
   there is no contradiction: the Fourth and Fifth Amendment both protect
   property rights, but in different ways and against different threats.

   Now, Orin claims that my latest post merely shows that it is possible
   to interpret the Fifth Amendment as requiring the government to
   compensate innocent property owners for takings that occur during
   criminal investigations, not that such an interpretation is required.
   I'm not sure I understand his post correctly. But it seems to me that
   it conflates my response to his Fourth Amendment point with the whole
   of my argument. If I am correct in that latest post in arguing that
   there is no contradiction between my interpretation of the Fifth
   Amendment and the functions of the Fourth Amendment, then my
   textualist approach to the Takings Clause stands: it is logical and
   natural to interpret it as applying to all takings of private property
   for public use. There is no implicit, nontextual exception for takings
   that occur during a criminal investigations. Thus, compensation for
   such takings is not only permitted but required by the text. My core
   argument is simply that the Takings Clause says what it means and
   means what it says. It applies to all takings of private property for
   public use, not just some subset of them.

   Orin also interprets my statement that the framers did not "intend" my
   reading as suggesting that it is merely a possible reading rather than
   the correct one. However, I have from the outset stated that my
   argument is textualist, not originalist. The sole originalist point I
   sought to make was that there is no compelling originalist evidence
   against my interpretation. That point is merely a negative defense
   against Orin's claim that originalism counts against my argument. My
   affirmative argument is textual, not originalist, and I respectfully
   suggest that Orin hasn't - at least so far - succeeded in refuting it.

References

   1. http://volokh.com/archives/archive_2008_04_27-2008_05_03.shtml#1209791915
   2. http://volokh.com/archives/archive_2008_04_27-2008_05_03.shtml#1209706276
   3. http://volokh.com/archives/archive_2008_04_27-2008_05_03.shtml#1209731219
   4. http://volokh.com/archives/archive_2008_04_27-2008_05_03.shtml#1209790278