Yesterday, I posted on how usage at the time of the Constitution might have employed the term private property to mean the type of property that private parties can own — and therefore governments might own private property. Seth Tillman of the National University of Ireland at Maynooth writes in to note that Justice Story’s famous concurring opinion in the 1819 Dartmouth College case described the property of a municipal (that is government) corporation as private property:
It may also be admitted that corporations for mere public government, such as towns, cities and counties, may in many respects be subject to legislative control. But it will hardly be contended that, even in respect to such corporations, the legislative power is so transcendent that it may, at its will, take away the private property of the corporation or change the uses of its private funds, acquired under the public faith. (Emphasis added)
This example suggests that at least in 1819 that usage was employed. While quite a bit more evidence would be needed to establish the usage at the time of the Constitution (and then to argue that the Takings Clause should be read to protect state government ownership of such property, this is a start.
Jan 20, 2017