Posted on 07/20/2005 7:03:46 AM PDT by 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.
Now what does a conservative say?
Words are such a tricky thing.
Is that not, under the Constitution, the actual power given to the Supreme Court?
The 5th Amendment does not apply to the states although, since 1925, the Supreme Court has told us that it (and most, but not all, of the rest of the BOR) does.
What the state of Connecticut did in the recent Kelo case is a matter for the people, the legislature and the courts of Connecticut to decide. It turns out that the Connecticut State Constitution (like most state constitutions) has an identical eminent domain clause as that in the 5th Amendment to the US Constitution...but the case should have ended after the Connecticut Supreme Court ruled on the matter
Interesting points so far. The theory of Eminent Domain as exercised by the Federal Government, though absolutely unconstitutional, seems far more reasonable than the same theory when exercised by state governments, which may not as clearly be violating the Constitution! I think most of us understood (and continue to understand) the need for Eisenhower's highway system--which overstepped the enumerated powers of the Federal Govt and trampled on individuals' and States' Rights; but we don't understand at all a State's right to deprive a citizen of property. Maybe we're all ends' justifiers--national security trumps States' and individuals' rights?
Kelo is a radical revision of the common understanding of the individual rights bundled in private property. It strips away individual rights in favor of the government common good. It attempts to push us and our property into a socialist scheme where the interest of the group trumps the right of the individual.
In a collective socialist society, individuals are expected to bow to government and contribute their money, their property and their labor for the goals of the imperial state. Kelo does this.
This, of course, is in direct opposition to American individual freedoms as stated in the Bill of Rights. The founding documents are a written contract to assure that the individual freedoms owned by the citizen are not trampled by any group favored by government.
In Kelo, that contract was destroyed when the court held an illegal constitutional convention and rewrote the plain words of the 5th amendment: “...nor shall private property be taken for public use...”
The court deleted the phrase public use and scribbled in “public benefit.” Public benefit can mean anything, to anyone, at any time. Public benefit is simply the American version of the Marxist “common good.” Nothing more.
Public use is building roads and post offices and schools for the public to use. The government taking one’s home or business for a condominium complex, an office building or a factory isn’t public use. The public can’t use a condo or office or factory.
To purposely misread the plain words “public use” shows that these so-called “justices” have pledged allegiance to a foreign and alien political philosophy that demands state control of private property.
So how , exactly , did the Supreme Court word it's decision, if I might ask?
Does this action stop at the Connecticut state line?
Actually, no. It is a role that the court assumed for itself in Marbury v. Madison, but nowhere is that power enumerated in the Constitution. The Founders envisioned a Court system to settle disputes between the states and also provided not for 3 co-equal branches, but for a Legislature that would be the more powerful branch, with a reasonably strong executive branch as a partial check and with a judiciary that was subservient to the Congress, since Congress can decide what matters fall under its jurisdiction as per Article 3, Section 2, Clause 2: In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
"Why should the U.S. Supreme Court step into a state matter when the state constitution does not differ from the U.S. Constitution?"
The Connecticut decision was definitive of the state constitution, but the SCOTUS has the last word on the US Constitution, including the Fifth Amendment, even if the state and federal constitutional provisions are identical.
"Defining public usage is, and should be, a state matter."
Not when the state law violates US Constitutional rights. For instance, had Connecticut interpreted its state laws and constitution to permit compelled confessions in violation of the US Fifth Amendment's self incrimination provision, I think you would see things differently.
It's constitutional in Soviet Russia or Zimbabwe.
In Kelo vs New London, Souter has allowed that a private consortium (in this case the various condo/pharmacy companies, all obviously private entities...) - through the canard that they can generate more income via increased taxes to the government, can now be considered to be a "public" use.
This is outrageous and unconstitutional, a crass example of Orwellian doublespeak/doublethink! It is a blatant exercise of tyranny from the judiciary, for they have again taken the legislative power out of the hands of We the People, trampled upon the Constitution they are sworn to uphold, and said act infers what we Freepers - indeed all freedom-loving Patriots - know to be the current truth, as it has been for the last 75 years: that the cause of individual freedom upon which our Founding Fathers built our nation has been and is currently being eroded in favor of a government that decides what the rights of the People will be --- an utter and complete repudiation of the Constitutional truth that "the powers not specifically enumerated within this document shall be reserved to the People".
But don't take my word for it; as you, I am but a layman. There's plenty of other, supremely (pun intended) more knowledgeable freepers than I here whose thoughts you can tap into on this.
No, I believe the Constitution is silent on the issue.
The Supreme Court seized that power for itself in Marbury v. Madison, but I would defer to a lawyer or the like. I am a simple engineer and geologist.
"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each." - Chief Justice Marshall, Marbury v Madison
The question remains, if not the Supreme Court then who?
Ruth Bader Gasbag and the bolsheviks changed the term public use, to public good.
Marxist deconstruction at its finest.
Words mean things, and the founders knew it.
The Marxists know it too, which is why they started by deconstructing the language, then the traditions, the culture and history.
There's nothing gay about faggotry, nothing private about murdering babies, nothing public good in stealing people's property and selling it to other citizens, and twenty thousand gun laws , no matter how "reasonable" is certainly way past infringement.
Only the immediate addition to the SCOTUS of five or six rabid originalists who will overturn decdes of deconstruction will save the nation.
Not going to happen.
Hmmmm....good point!
The Supreme Court of the United States has made a number of rulings in the last few years that harken back to the "good old days" of the Dredd Scott decision...
You've got the decision that McCain/Feingold CFR is constitional, eventhough it's in direct contradiction to the actual wording of the Constitution: "Congress snall make no law..." It makes you wonder what part of that fragment they don't understand...
You've got the case you mention here, where the property taken is NOT for public use, but for private use, in the hope that the public will eventually benefit from additional tax revenue and more jobs.
The recent medical marijuana decision, where Justice Thomas said that the decision pretty much gives the federal government unlimited power to regulate everything and anything.
Lord protect us from the tyranny of the judiciary, the unelected monarchy!
Mark
I would think we could demand that our taxes be lowered because they are only going to pay at best is 50 cents on the dollar or less
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?
The other key words are "just compensation". This would have to include sentimental value and pain and suffering involved in moving as well as having to cultivate new relationships with new neighbors.
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