The West Wing, The Takings Clause and Tom Merrill

[An UPDATE to this post is available here]

What is the ultimate honor for a law professor?  Publishing in Harvard or Yale Law Review? Having your article cited in a SCOTUS decision? 

Nah. Its being mentioned on the West Wing.  Astute watchers of the show may recall in season 5, during a constitutional crisis regarding Presidential succession, that Yale Prof Akhil Amar was mentioned.

On Sunday’s episode, former White House Communications Director Toby Ziegler, in talking to Chief of Staff C.J. Cregg, claims to have discovered a typo in the Constitution in the Takings Clause – specifically a missing comma.  He says the National Archives can’t explain whether it is a comma or a smudge.  Toby then indicates he has put in a call to Tom Merrill.  Paul Boudreaux had some thoughts on this earlier in the week at the Land Use Law Profs Blog.

Tom Merrill, of course, is a noted Takings Clause expert at Columbia Law School. 

The reference to the Takings Clause, a missing comma and Tom Merrill is either too cute by half or an indication that some script writer is really paying attention. 

In his September 20, 2005 testimony before the Senate Judiciary Committee regarding the Kelo v. New London decision, Prof. Merrill repeats his somewhat unique interpretation of the Takings Clause – an interpretation which could be said to rest on a “missing comma.”

In relevant part, discussing the myths of Kelo, Prof. Merrill 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.”

This testimony is almost identical to Prof. Merrill’s Amicus brief on behalf of the American Planning Association (at p. 4.).  In his Amicus, Prof. Merrill acknowledges that his “only a subset of takings” is not accepted as a general interpretation: “Nevertheless, “for public use” has been read throughout our history as imposing an implied limitation on the exercise of eminent domain – that it can be used only for public and not private uses – and this Court has accepted this interpretation. Brown v. Legal Found. of Washington, 538 U.S. 216, 231-32 (2003); Thompson v. Consol. Gas Utils. Corp., 300 U.S. 55, 80 (1937).” (Amicus brief  at p.4)

So perhaps the writers of the West Wing episode read and understand Prof. Merrill’s position and so wrote him into the show.  One could read Prof. Merrill’s position as “the case of the missing comma.”  Certainly, arguments made from the peculiar (to modern sensibilities) grammatical structure of the Constitution are nothing new.  Modern readers frequently find the usage of commas – or the lack thereof – to be quite strange. 

Where is Toby Ziegler’s “missing comma” under a Merrill-type theory?  It probably should be the lack of 2 commas surrounding “for public use.”   In official versions of the constitution, the Takings Clause reads: “nor shall private property be taken for public use without just compensation.”  No commas in the original.  With the supposed “missing commas” it would read: “nor shall private property be taken, for public use, without just compensation.” 

Can we read Prof. Merrill’s argument as saying that since the original does not include the two commas around “for public use” that “for public use” does not constitute a separate constraint on the government’s eminent domain power?

Kurt Paulsen

[Comments are held for approval, so there will be some delay in postion]