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Constitutional Proscriptions on Taking July 25, 2006

Posted by federalist in Regulation.

If we read the Fifth Amendment correctly, there are probably a lot of things our government does at present that should be prohibited.

An excellent letter to the editor today by Prof. Hadley Arkes of Amherst College details these Constitutional proscriptions on “class legislation.”  Speaking of the federal rejection of the Maryland law that tried to impose healthcare mandates on Wal-Mart:

We ought to recall that our constitutional tradition already encompasses that kind of protection, and we may not need any further legislation. In the old Legal Tender cases in 1870, Chief Justice Chase noted the provision in the Fifth Amendment that barred the taking of private property for public use without just compensation. He pointed out that the principle behind that clause surely ran more deeply and broadly: If “property cannot be taken,” he said, “for the benefit of all, without compensation, it is difficult to understand how it can be so taken for the benefit of a part without violating the spirit of the prohibition.” If private property cannot be taken for public use, surely it may not be taken, by law, for private use.

If the city of Boston took municipal control of an apartment building it would have to pay compensation. Would it get around the constitutional provision if it merely assigned the property to the tenants? What we saw at work in Maryland was the sort of thing that used to set off alarms and whistles in the past as a species of “class legislation,” with a legislature simply transferring property from persons A to persons B. The president of the Maryland Senate gave the game away when he remarked of this legislation that “It moves away from government. It takes people who should be getting health benefits at the work place off the rolls and it requires those employers to provide it.”

In other words, instead of mandating a public service and justifying the taxes to sustain it, the legislature shifts the burden entirely to a private employer. That subverts the discipline of constitutional government. Exactly what Clause in the Constitution conveys the principle is not one that overly troubled jurists or legislatures in the past. As Chief Justice Chase suggested, it could be the Takings Clause of the Fifth Amendment, in this case made binding on the states through the Due Process Clause of the 14th Amendment. But whatever the Clause, this is a language of constitutional concern that has disappeared from our recent discourse, and it has disappeared from the language of legislators in part because it has disappeared from the sympathy and understanding of the judges. As Chase showed, though, there is nothing inscrutable here, and nothing prevents us from recovering that understanding, once so widely grasped.

What other laws might violate these amendments?



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