Takings Clause public use "requirement"

Orrin Kerr at The Volokh Conspiracy is asking essentially the same question I addressed in a comment on this post on A Constrained Vision about “defining public use” back on the 6th.

I wrote:

It’s interesting this idea of a public use ‘requirement’ in the Fifth Amendment. My reading is that public use is assumed, it’s the subject at hand in the amendment, and the requirement is just compensation. My reading of the Amendment is that it doesn’t address takings for private use at all.

He’s asking:

At the same time, this isn’t what the text of the Takings Clause actually says. The text of the clause says that if private property is taken for public use, then just compensation must be paid. The Constitutional text doesn’t address takings for private use at all. Not only would such a taking seem to be allowed by default, but the Constitutional text doesn’t even seem to require the government to pay just compensation for it. The text doesn’t say, “Private property shall not be taken for private use, nor shall private property be taken for public use without just compensation.” It only says “Nor shall private property be taken for public use, without just compensation.”

My answer, for what it’s worth (about a nickel), to my own question and his is that the assumption of the founders was that the Bill of Rights and the Fifth Amendment were limitations on federal power. Since the Constitution did not empower the federal government to take private property for private purposes, there was no need to require compensation for such a taking. A true strict constructionist would have to conclude that there is no federal limitation or requirement for compensation on state takings, public or private. The federal government on the other hand is not empowered to undertake private purpose takings.

He has enabled contents, so if the question is of any interest, head on over there as I’m about to do.

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