Is the Eminent Domain decision Constitutional?

[mike182d]

I was arguing over the eminent domain decision with a co-worker when they brought up the 5th Amendment:

"...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."

She said it implied that the Government can take property for public use in so far as there is just compensation. Is this a correct interpretation of the 5th Amendment?

Also, as I am not a Constitutional scholar, I am curious as to how the Eminent Domain decision differs from the 5th Amendment.

[frogjerk]

She said it implied that the Government can take property for public use in so far as there is just compensation

Target Superstore, Walmart, K-Mart, Shopping Mall: all public establishments according to the Supreme Court - sarcasm

[MeanWestTexan]

Most reasonable Constitutional scholars would answer "no."

That said, we have, for right and wrong, allowed the Supreme Court to be the arbitor of what is, and is not, Constitutional. The Court said "yes," so the answer is "yes."

[The_Victor]

Turning the seized property over to a private developer for his personal profit is not "public use," regardless of the compensation.

[Numbers Guy]

She said it implied that the Government can take property for public use in so far as there is just compensation. Is this a correct interpretation of the 5th Amendment?

Yes. For instance, property is routinely condemned (with allegedly market-level compensation) for new highway consruction.

[Bluegrass Conservative]

"...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."

I think the key words in that are "for public use". Traditionally, that had been interpreted to mean actual use by the government (roads, schools, etc.). The question is 1) Are public good and public use the same thing? and 2) If so, is an expanded tax base considered public good?

[mike182d]

Target Superstore, Walmart, K-Mart, Shopping Mall: all public establishments according to the Supreme Court - sarcasm

WalMart most certainly is necessary for the common good. I don't understand what you're talking about :-)

[Red Badger]

The decision of the court, in effect, changed the definition of "public use" to mean anything a local gov't wants it to mean. Too bad they didn't define "just compensation".........

[mike182d]

The question is 1) Are public good and public use the same thing? and 2) If so, is an expanded tax base considered public good?

Good point. I guess that's what this whole issue really hinges on.

[CatoRenasci]

In short, yes.

The notion of taking private property for such things as schools and roads or public buildings has not been controversial. What has been controversial over the years has often been whether there was "due process", whether or not the compensation was "just", and, which brings is to Kelo what counts as a Constitutionally permitted "public use".

[FreedomPoster]

>> She said it implied that the Government can take property for public use in so far as there is just compensation. Is this a correct interpretation of the 5th Amendment?

Sure. But up to now, this has always only applied to things like roads, ports, schools, courthouses.

Now, we have the prospect of eminent domain being used to hand over property for private use to private groups and individuals. This is a new and dangerous interpretation, that should be overturned.

[Non-Sequitur]

The Connecticut legislature passed a law saying that using emiment domain to seize private property for development by private companies qualified as 'public use' under certain circumstances. The Connecticut Supreme Court upheld that law. Why should the U.S. Supreme Court step into a state matter when the state constitution does not differ from the U.S. Constitution? Defining public usage is, and should be, a state matter.

[CygnusXI]

The "spirit" of the law IMO is that the taking of private land by the gov is to be for critical infrastructure-- ONLY.

Looking at the history of ED, it was established during a time in America when we were just starting to really develop.

Train lines, roadways and other infrastructure needed to support a city were critical, and some peoples homesteads, farms, and other properties had to be aquired for this facilitation.

To use ED for increased TAX revenue is beyond perversion, and borders (if not interceeds) on Communism.
Period.

[Always Right]

She said it implied that the Government can take property for public use in so far as there is just compensation. Is this a correct interpretation of the 5th Amendment?

Yes, but calling a hotel a public use is a amazing legal acrobatic maneuver. Prior to that, public use was limited to things like roads, fire stations, jails, etc. Making increased tax revenues a justifiable 'public use' is a stretch that renders the Constitution virtually meaningless.

[AlexW]

The ambiguous terms are "public use" and "just compensation"

[laishly]

"...the Government can take property for public use in so far as there is just compensation. Is this a correct interpretation of the 5th Amendment?"

Yes. The latest ruling from the SCOTUS left it pretty much to the states to determine what is a "public use," which, in the case before the court, meant increased tax revenue from the private developer after the property was "redeveloped" to its best and highest use as a commercial retail project.

[Bluegrass Conservative]

That said, we have, for right and wrong, allowed the Supreme Court to be the arbitor of what is, and is not, Constitutional.

If I'm not mistaken, isn't that the role of the Supreme Court?

[The Duke]

Had the Constitution said "public benefit", rather than "public use", then the Supreme Court might not have abandoned the cloak of legitimacy two weeks ago.

As it is, perhaps the "august" body should be more appropriately renamed to "The K-Mart Court"(?) They could even run "blue light specials" on the steps of the courthouse.

[The_Victor]

That said, we have, for right and wrong, allowed the Supreme Court to be the arbitor of what is, and is not, Constitutional. The Court said "yes," so the answer is "yes."

The sad part of the Maybury vs. Madison decision is that Congress has quit trying to write Constitutional law. They write what they want, and if the Supreme Court doesn't strike it down, then it must be OK. The system would work better if the other branches of government actually tried to defend the Constitution.

[MarcusTulliusCicero]

The eminent domain decision represents an expansion of the 5th Amendment "takings" clause that you just quoted. Prior to this decision, a government could "take" property from a citizen, however, that property had to be put to a public use, e.g. for the building of a highway that all would have the ability to use or the building of a courthouse, etc. The Kelo decision now purports that a government can take land if it benefits a "public interest". So, even though the land will be used to benefit a private entity such as a corporation, as long as it provides some amorphous benefit to the community, which can include the increased tax revenue generated by way of the increased property value, then the "taking" is lawful. This represents an enormous expansion of the government's power to confiscate private property for an ill-defined reason. Also, it is the government that determines just compensation. So, just as the expansion of the commerce clause has led to the justification for all sorts of non-constitutional activity, so the Kelo decision will result in the loss to citizens of their right to own property in the situation when your local government thinks they can put it to more profitable use.
There is also a more subtle flip side to this decision that very few people realize. It also now gives local government total control over what is built where. It has been characterized as a "pro-business" decision but it can as easily be "anti-business". Take the recent controversies over Wal-mart building in certain cities or communities. Suppose Wal-mart approaches you and your neighbors with an offer to buy your property because they want to build the first Wal-mart in your town. They offer you and your neighbors 3 times the value of the land. It is all agreed to and you've set a day for the grand signing of the sales agreements. But the local town council, controlled by the Democrats decides that they don't want Wal-Mart in the town because it is anti-union. So, they decide to condemn your houses, raze them and put a bike path for Socialist use only where your houses and/or the future Wal-mart were intended. Wal-mart, being no fool, is now not going to go through with the purchase. Or, alternatively, the signing could have gone forward and THEN the town council could seize the land from Wal-mart and pay them 1/3 of what they paid you. The only justification they now need to give is that it will serve the community benefit. They don't ever have to build anything on it themselves for public use. In fact, they can then turn around and sell it to whomever they choose for whatever purpose they choose