It would have been more appropriate to post this last Wednesday, on Constitution Day, but I was one of those “law professors … crisscrossing in the sky or at airport terminals” to speak at a Constitution Day event. In any event, I thought readers might be interested to know that the Heritage Guide to the Constitution has just released a second edition, heavily revised after ten years.

The Guide provides scholarly commentary on the meaning and history of each clause of the Constitution, though the goal of the whole project is to be more descriptive than didactic. Here’s a release presentation about what has changed in the past ten years. The most important change from my own point of view is that I wrote the second edition’s entry for the Takings Clause. My entry begins:

Considering its modern importance, the original purpose of the Takings Clause is surprisingly obscure. Most provisions of the Bill of Rights were requested in some form as the states ratified the original Constitution. But the Takings Clause was not. Representative James Madison added it for unexplained reasons as he sifted through the requested amendments to propose a slate of them. There were a few historical precedents for the Clause. The Northwest Ordinance contained a just-compensation requirement. Two colonial charters and two state constitutions had such a requirement as well. Other states sometimes provided just compensation by custom or due process. But there was virtually no recorded discussion about the Takings Clause itself. …

And here is the beginning of my discussion of the “public use” requirement, most famously at issue in Kelo:

The Takings Clause has also long been held to require that the taking be “for public use.” In other words, it must not take property from one person and give it to another for purely private gain. As a purely textual matter, the Clause is ambiguous about such a requirement. It is possible to read the Clause as simply describing the conditions under which property will be taken. Indeed, one might say that the enumerated powers doctrine independently requires all federal takings to be for a public use, and hence that any federal taking that is within the enumerated powers is necessarily one for public use. One could also read the Clause as limiting compensation to takings for public use, while providing no compensation if the taking is for private use.
The conventional wisdom, however, is to read the Takings Clause as containing an independent public use requirement. This avoids rendering the “public use” phrase redundant, and avoids the strange result of leaving takings for private interest without compensation. It is also the view taken by many state courts throughout the 19th Century, in the course of interpreting their own state constitutional law. As with the regulatory takings doctrine, it is possible that the original meaning of the 14th Amendment incorporates a public use requirement against the states even if the Fifth Amendment was not originally understood to apply it against the federal government.

(A lot of other exciting new authors have come on board for other clauses.)

At the moment the second edition is only available in hard-copy. The first edition, however, is available as a free online resource. I don’t know whether and when the second edition will be online.

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