In the NYT Mag’s piece on the Constitution in Exile, the following point is made:
According to Epstein, the Takings Clause prevents the government from redistributing wealth in any form without appropriate compensation and that a proper understanding of the clause calls into question ”many of the heralded reforms and institutions of the 20th century: zoning, rent control, workers’ compensation laws, transfer payments,” as well as ”progressive taxation.” Liberal governmental reforms could be sustained, Epstein argues, only if the government were to compensate individuals for the lost value of their property or to make everyone better off in exchange for their taxes.
This is an interesting issue, one I hadn’t thought of before. How is it that taking Jane’s money to give to Sam is not a violation of the “just compensation” element of the Takings Clause? (Epstein may or may not believe that the “public use” prong is also at issue; I don’t.)
I’m sure there has been good stuff written on this question, but I’m not familiar with it. Please provide me with your cites and insights in the comments sections.
Posted by Hillel Levin on April 18, 2005 at 05:01 PM
Comments
That’s a silly argument. The answer is simple:
’cause there’s other, more specific, provisions of the Constitution specifically permitting taxation. (And those provisions don’t include any restriction on redistributive use.)
To read the takings clause that broadly would require not reading the sixteenth amendment at all. And, since the sixteenth amendment came after the fifth, if they’re in conflict the resolution of such a conflict would have to go the other way around and bye bye takings clause.
(I tend to think that the takings clause just means, on the very outside, no individualized taking of property/taking of specific property. “No land shall be used for a hog rendering plant” = no taking. “Your hog rendering plant is now a public park” = taking. But that’s not as clear as the undisputable fact that taxation isn’t a taking.)
Posted by: Paul Gowder | Apr 19, 2005 7:54:46 PM
Here’s a cite–the issue of compensation for legal changes is very intelligently addressed in Louis Kaplow’s piece on legal transitions, which appeared a number of years ago in the Harvard Law Review.
Posted by: Rob Howse | Apr 18, 2005 8:38:42 PM