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Why Doesn’t the Fifth Amendment Apply?

Summary:
The Fifth Amendment reads: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. The takings clause may provide the guiding principle.  Shutting down the economy to address a public health crisis could be interpreted as a taking for public use, and if

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The Fifth Amendment reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The takings clause may provide the guiding principle.  Shutting down the economy to address a public health crisis could be interpreted as a taking for public use, and if so, the citizens are due just compensation for what was taken.  Just compensation is the market value of their loss.

I am just thinking aloud here, but I wonder if this approach had been pursued how the public finance of this would have been, if at all, different than what was done.  Would business and their workers rather than go through potential bankruptcy and unemployment just had all bills at this time sent to federal government?  Would have an average of the weekly expenses covered for all enterprises ordered to shut down accumulated over the period of time required to deal with public health crisis have cost less than what brine of politics in an election year will produce?  Or will the bill be roughly the same in the end?  If done right, would it have been possible to avoid unemployment numbers we are experiencing and will continue to experience and failed enterprises we will see as business do not bounce back and with that foreclosures etc.

What are the biggest weaknesses in seeing a Govt order to shut down as a Taking?

UPDATE: Ryan Murphy and Chris Fleming point me to this earlier ruminations on the issue by Ilya Somin, and the report issued by the Congressional Research Service. Turns out my "thinking aloud" is about 5-6 weeks behind!!!

Peter Boettke
Peter Joseph Boettke (January 3, 1960) is an American economist of the Austrian School. He is currently a University Professor of Economics and Philosophy at George Mason University; the BB&T Professor for the Study of Capitalism, Vice President for Research, and Director of the F.A. Hayek Program for Advanced Study in Philosophy, Politics, and Economics at the Mercatus Center at GMU.

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