Tuesday, May 9, 2006

Roads, the environment, and takings on "The West Wing"

   Environmentalism and traditionally liberal land use policies remain at odds in some policy arenas.  For an example from the popular culture, Sunday's penultimate “West Wing” television episode had the outgoing chief of staff for the liberal president being asked by an eccentric billionaire for one way to use his gold to save the world.  “Highways,” the liberal character quickly responded, explaining that aid for many of the poor in the Third World can’t reach its destination quickly enough because of bad roads.  Imagine the horror in the family rooms of environmentalism (which heard applause years ago when another "West Wing" character responded to a similar question with "Save the Everglades"), at the thought of the African savanna and rainforest mowed down for asphalt, with loggers, ranchers, miners, and hunters following swiftly behind!      

  Meanwhile, in the same episode, another flawed heroic character tells our chief of staff that he’s “found a typo in the Constitution” –- the National Archives can’t tell him whether it’s a comma or a smudge in the original –- that could “change the meaning of the takings clause.”  He then relates that he’s put in “a call to Tom Merrill.”

   Hmmm, let’s see … “nor shall private property be taken for public use, without just compensation.”  Take out the comma and it’s “nor shall private property be taken for public use without just compensation.”  Sounds the same to me.   How about “nor shall private property be taken, for public use, without just compensation.”  Well, this might just be construed to mean that New London didn’t even have to pay Susette Kelo a cent! I knew those writers were still liberals after all …


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The West Wing is the only major network show which regularly salts its dialogue with references to Law Profs! Just a few years ago (during the constitutional crisis over an acting president) the dialogue was heard to refer to Akhil Amar at Yale.

Actually, I think the reference to the missing comma and Tom Merrill is quite clever. Recall in his testimony before the Senate on the meaning of Kelo that Prof. Merrill holds the view that the "for public use" clause does not constitute a seperate restriction on eminent domain. His reading is that only those takings which are for public use require compensation. In other words, the public use clause is not an actual restriction on all eminent domain actions, it only specifies that subset of eminent domain actions which require just compensation.

Merrill's argument, in part, rests on the fact that there isn't a comma after taken. I believe that Merrill argues that, had the founders intended the public use clause to be a restriction on all takings, they would have included a comma after taken?

Posted by: Kurt Paulsen | May 9, 2006 9:31:30 AM

I didn't know of his view on this -- thanks! Considering the lack of uniformity in spelling and grammar in the 18th C, I'm in no position to weigh in on a comma argument. I'd also be surprised, however, if the founders thought much about urban redevelopment corporations, or why they'd want to relieve them from a compensation requirement.

Posted by: Paul Boudreaux | May 9, 2006 7:08:18 PM

One can find Tom Merrill's comments at:


Under Myth 4 (discussing common myths as to Kelo's meanings) he argues:

"Myth Four: The original understanding of the Takings Clause limits the use of eminent domain to cases of government ownership or public access ...
Unfortunately, other than the language of the Takings Clause itself (“nor shall private property be taken for public use without just compensation”), there is virtually no direct evidence about what the Framers understood by the words “for public use.” The phrase modifies “taken,” and thus clearly establishes that the Takings Clause is about a subset of takings – those for public use as opposed to other possible types of takings. But this narrowing language does not necessarily mean that the Clause imposes an affirmative requirement that a taking must be for a “public use.” It is also possible that the Framers were simply describing the type of taking for which just compensation must be given – a taking of property by eminent domain as opposed to some other type of taking, such as a taking by tort or taxation."

Posted by: Kurt Paulsen | May 11, 2006 6:52:24 AM

This is a great site. Please do keep it up! I'm not so sure, given the importance placed on property rights by early Americans and the Framers, that Merrill's reading is correct. More importantly, though, original intent works well in easement law, in which you've typically got individual grants between parties and a specific object (the land) under consideration. Seems a bit strained, though, to interpret our Constitution that way. By the by, I'm glad I've found your blog, it's quite interesting.

Posted by: Omar Passons | May 21, 2006 6:43:43 AM