Tales of the Golem; or, the Modern Epimetheus

Nor shall private property be taken for public use without just compensation.

I'm puzzled by the claim made in the Kelo dissents, and elsewhere, that the Fifth Amendment prohibits the government from taking private property except for public use. The Kelo dissents cite Brown v. Legal Foundation of Wash., which states, "While it confirms the state's authority to confiscate private property, the text of the Fifth Amendment imposes two conditions on the exercise of such authority: the taking must be for a “public use” and “just compensation” must be paid to the owner." There seems to be no more explanation or elaboration on the issue in Brown v. Legal Foundation of Wash.

Now in my opinion the statement just quoted from Brown is false. While the requirement of public use might be well rooted in something else (common law? common sense?), it is not imposed by the text of the Fifth Amendment.

I'm not a lawyer, but I speak English. If I say, "Nor shall a party be thrown for someone's birthday without a cake and candles," that would never be read as a prohibition of Hallowe'en parties, even if Hallowe'en parties are not for someone's birthday.

(We can leave aside the separate question of whether a cake with candles is or should be required at a Hallowe'en party, and also, whether a party occurring on October 31 or any other day could always be justified as being for someone's birthday.)

posted by Richard Mason @ Friday, July 01, 2005