Over at the Originalism Blog, Mike Ramsey recently had an interesting post on the Supreme Court case (Arkansas Game and Fish Commission v. United States) holding that a temporary flooding of land can be a taking. The case also stated that state government property can be private property under the Takings Clause. The Court based this conclusion on a 1893 precedent.
Mike argues that state owned property is not private property and therefore the decision cannot be justified on originalist grounds. I am sympathetic with his conclusion, but I am not sure he is right from an originalist perspective. As I have been trying to argue in recent posts, determining the original meaning is complicated.
First, originalist conclusions turn on how language was used at the time, and I can imagine a plausible usage that would render state owned property to be private. Perhaps private property meant not property own by nonstate actors. Instead, perhaps it meant the type of property owned by nonstate actors in contrast to the type of property held by states. Thus, ownership of a piece of land in fee simple would be private property, even if owned by a state, but a state’s control over the oceans or the air or oyster beds would not. Those latter types of property are public property as opposed to private property. I don’t know if this was a meaning of private property at the time of the Constitution, but it might have been.
Second, even if the original meaning of the Takings Clause does not protect state owned property, such property might still be protected through another part of the original meaning. According to a paper by Will Baude forthcoming in the Yale Law Journal, the federal government may not have power (under its enumerated powers) to take private property. Instead, the federal government can acquire property by condemnation only if the state within which the property lay authorizes the taking. Apparently, this scheme of cooperative federalism was followed until the 1870s. Perhaps the federal government’s lack of power to take property extended not merely to private property, but also to property owned by the state. If that is true, and if Will is otherwise right, then the federal government might not be able to take state property, not because it is private property under the Takings Clause, but because the federal government does not have power to do so.