Posted on 07/20/2005 7:03:46 AM PDT by mike182d
Consider this hypothetical case:
There is a large church-owned strip of land in the People's Republic of Santa Monica adjacent to the church which is devoted to use as a parking lot and school. It is currently tax-exempt (no 'public benefit' here), but it would be considered prime development property for a private company and would generate big bucks for the city.
Unless California acts to defang the ED law, what is to prevent the city council from taking this property by ED and selling it to a developer?
I sit here in my 45 year-old lakeside property and tremble because I'm now at the mercy of the city council of the small bedroom suburb across the road, the majority of whose constituents can clearly see that my property is more valuable as a high-rise condo development.
I recall the congresscritters recently passing legislation - the religious freedom act or something - that prevents governments from discriminating against religious organizations. The act was written to precisely prevent hostile actions actions against churches, such as denying them permits to expand facilities.
In addition, courts would frown and probably strike down an eminent domain action targetting one little old church sitting on a corner. Now if you include the demolition of the grocery store, tavern, restaurant and a couple hundred houses along with the church, the Olympian gods on the court would smile and approve.
As Sen Leahy said last night in response to Roberts' nomination; the Sup Court is the final arbiter of rights and the meaning of the Constitution.
That the Court was never intended to have such power has become meaningless now. They have seized it for themselves, and the allegedly coequal Executive and Legislative branches have done nothing but bend over and take it. Sadly, the people too have come to view the decisions of the Sup Court as akin to the word of God, beyond reproach.
This is a recipe and outline for eventual leftwing triumph in all areas of the culture war, as we've seen that its much harder to get conservatives on the bench than liberals.
Short of GOP triumphs in all future presidential elections, followed by a sudden ability to consistently pick conservatives, I don't see much hope, unless the spirit of Andrew Jackson comes back and possesses a future President, and emboldens him to challenge the Sup Court head on.
A state does not have the prerogative of inventing Clintonesque definitions of words for the purpose of swindling citizens of their rights. The Supreme Court failed in its duty to reverse that abuse by the state of Connecticut.
Nonsense. The Constitution does not define either the term "self-incrimination" or the term "public use". Thus, if your argument is valid, it applies equally to both -- and, indeed, applies to every other term of legal art.
Since this renders the entire Constitution effectively void of effect -- a state can simply play Humpty Dumpty and redefine any inconvenient phrases as it sees fit -- it is untenable.
A state does have the right to define what is in it's best interest and what determines 'public use', or so the Supreme Court has decided.
I think their argument would be that far from discriminating against religion by using ED against the church, they are proving they are NOT discriminating as to religion by going after their land just like everyone else.
I also posited that this wasn't a "little old church sitting on a corner" but a LARGE strip of land suitable for private development. Just because churches have traditionally been excepted from ED action, and may still be in many jurisdictions because of politics, I don't think that this Kelo decision exempted their property from ED.
2) If so, is an expanded tax base considered public good?
Bear in mind that the expanded tax base assumes the beneficiary of the property will be successful. In condemning land to give to a private developer, the government has decided that betting on the success of the development is a public good.
That is true. However, there are some things that are sure bets in life. I can think of a few areas of my town that I can guarantee would be more successful if they were cleaned up. LOL
That being said, I don't support the Kelo decision in any way.
It's up to each state to decide. If they fail to act at the state level, local entities are free to take your property and give it to Donald Trump if they feel like it.
as far as what is constitutional, the supreme court gets the last guess.
If it is, the authors disguised it pretty well. Here's what the Constitution says:
Article III
Section. 1. The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State [Modified by Amendment XI]; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. 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.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
And a few other things such as right of way for railroads and privately owned utilities. Still those were for highly regulated industries that are operated for public use, often with controls on profits, prices, etc.
OK, then what was the original meaning of "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."?
Not having your property taken seems like an immunity to me. Just like not having your guns taken.
"Privileges and immunities" is a term of art, typically used to describe the relative rights of different people under 1 set of laws rather than substantive rights. So the 1776 NJ Constitution used the P&I term to guarantee "to every Protestant inhabitant the full and free enjoyment of "every privilege and immunity, enjoyed by others their fellow subjects."
The Article of Confederation, which the Constitution replaced, provided in Article IV:
The better to secure and perpetuate mutual friendship and intercourse, among the people of the different states in this union, the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions, as the inhabitants thereof respectively....
Thus, under the Articles of Confederation (and later Article IV of the Constitution) states were required to extend to visitors all of the "privileges and immunities" that it extended to its own citizens. The placement of the P&I clause in Article IV of the Constitution is further evidence that the provision was intended to ensure that citizens of one state traveling to another state were treated under the same laws as natives of that state...Article IV is all about interstate comity...the Full Faith and Credit Clause and extradition are also in that Article. As Raoul Berger, who was probably the preeminent expert on the 14th Amendment, noted, the P&I clause was "not about the absolute rights of citizens but about the relative rights of strangers"
The 14th Amendment was intended to address a couple of gaps left by the Constitution that affected the rights of blacks. Charles Fairman in his 1949 Stanford Law Review Article writes:
So far as civil rights were concerned, the mischief to be remedied was, first of all, discrimination against the Negro by the government of the state wherein he resided.... This was an evil against which Article IV, Section 2 had nothing to say: how the state treated its own inhabitants was beyond the purview of that provision. Far less important, though listed as a subsidiary point, was the mistreatment that at times had been meted out in the Southern States to visitors from out-of-state; South Carolina's action in excluding Samuel Hoar of Massachusetts [and abolitionist lawyer retained by the Commonwealth to test a South Carolina statute detaining black seamen in jail while their ships were in port] in 1844 was the stock example. This latter type of discrimination was forbidden by Article IV, Section 2; but here the difficulty was that Congress had been given no specific power to compel obedience. Evidently a constitutional amendment that (1) required the state to accord to all its inhabitants the equal protection of its laws, and then (2) gave Congress power to enforce this requirement as well as Article IV, Section 2, would have substantially met both evils. In effect, the rights enjoyed by the white citizen in any state would be the measure of the rights of the local Negro and of the citizen of a sister state
See Justice Thomas' dissent.
Try here: http://supreme.lp.findlaw.com/supreme_court/decisions/index.html
The decision is Kelo v. New London.
The tyrannical leftists of the Supreme Court have usurped power, again. They transferred your right to own private property to state and local governments. Now, no matter how one attempts to explain it away, you are little more than a renter in states that do not strictly uphold the traditional view of property rights.
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