2. The common-understanding doctrine and takings

There are three main issues regarding takings: (1) what constitutes a taking; (2) what constitutes a public use; and (3) what constitutes just compensation. The current members of this Court have discussed the public use question in Wayne Co v Hathcock, 471 Mich 445 (2004), and the just compensation question in Silver Creek Drain District v Extrusions Division, Inc, 468 Mich 367 (2003). In both of these cases, this Court looked to the common understanding of the disputed terms, whether "public use" or "just compensation." In both cases, this Court found that the terms were technical legal terms that should be interpreted in light of the meaning that those sophisticated in the law would have given those terms at the time of enactment. Silver Creek, 468 Mich at 376; Hathcock, 471 Mich at 470-71.

In Hathcock, this Court stated: "The primary objective in interpreting a constitutional provision is to determine the text’s original meaning to the ratifiers, the people, at the time of ratification." 471 Mich at 468. This Court explained:

This Court typically discerns the common understanding of constitutional text by applying each term’s plain meaning at the time of ratification. But if the constitution employs technical or legal terms of art, "we are to construe those words in their technical, legal sense."

Id. at 468-69 (footnotes omitted, citing Silver Creek, 468 Mich at 375). This Court explained that the Michigan takings clause is highly technical: "[W]e have held that the whole of art 10, § 2, has a technical meaning that must be discerned by examining the ‘purpose and history’ of the power of eminent domain." Hathcock, 471 Mich at 471 (footnote omitted). Where there is a technical meaning related to the common understanding of a constitutional provision, the courts must "delv[e] into [the] body of case law." Id. In Hathcock, this Court did not hesitate to deviate from federal takings case law interpreting the Fifth Amendment of the United States Constitution, which is similar to art 10, § 2. Hathcock, 471 Mich at 479-81.