Posted on 12/04/2006 10:57:41 AM PST by spintreebob
Is this Shopping Center Blighted?
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The tenants are mainly successful entrepreneurs with booming business
The Village of Arlington Heights, Illinois is voting to seize the International Plaza Shopping Center, by eminent domain, in order to transfer ownership to a private developer who plans to build a SuperTarget. This will significantly hurt and, in many instances, put out of business over 70 tenants in the shopping center.
How can they do this? The only legal way is to declare the property "blighted," which they have done. Despite the fact that the center was 98% leased when declared "blighted," and is one of the more attractive shopping centers in Arlington Heights, they have declared it "blighted" so that they can attract a tenant (Target) who will bring in more tax revenue.
In Your vote, indicate where you live, and whether or not you have seen this property
Follow the Sunset Hills solution..get rid of those politicians.
Real blight is a discontinuity in the bid rent curve, which politicians wouldn't know if it bit them- additionally, they almost always hire "urban planners" trained as architects rather than economists.
The original states were told to write up their constitions PRIOR, hence reserving their States rights. The majority contained the Bill of Rights. The Feds wanted to insure that those rights would extend to the new states which would come along.
"Remember, folks: the strict constructionist view is that the Constitution applies to the federal government, not to the states. The feds can't do this, but the states can unless the state constitution says otherwise."
No, for a strict constructionist, one would have to also note the amendments and the debate surrounding them. Using that criteria, the 14th trumped the intent of the founders and the intent of the drafters of the 14th was to incorporate the bill of rights into state law.
"I think Target is a blight."
I agree.
No, not under original intent. See Barron v Baltimore (1833). The 5th Amendment did not apply to the states, and then only limited, until 1898.
That turns out not to be the case:
Senator Howard, who introduced the Fourteenth Amendment for passage in the Senate, certainly read the words this way. Although I have cited his speech at length in my Adamson dissent appendix, I believe it would be worthwhile to reproduce a part of it here....Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution, and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizens solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation...
...The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.
My Aunt and Uncle live in Arlington Heights. I will have to call them and see what they think. They are the rich part of the family except for their son who lives in Lincolnshire. They probably want so elegant expensive store to be put there. lol. I will ask them and see what they say.
And, as I noted in my previous message, the clear original intent of those amendments (specifically, of the privileges and immunities clause of the Fourteenth Amendment) was to prevent state governments from violating the rights of citizens as described in the federal Bill of Rights.
Precisely.
“You wrote: "No, the Federal BoR trumps the states."
That is only true because the Supreme Court said so. It was not the original intent.
The Supreme Court also very clearly said, in the Kelo decision, that the states have the power to do what is being done here with eminent domain.”
No, you have that wrong. This is what the drafters of the 14th Amendment said
“Quoting Barron v. Baltimore (1833),[53] Representative Michael Kerr of Indiana argued that the Bill of Rights limited only Congress.[54] Martin Thayer of Pennsylvania responded: "Of what value are those guarantees if you deny all power on the part of the Congress of the United States to execute and enforce them?"[55] Thayer's argument exhibited the intent of what would become the Fourteenth Amendment”
And
“What would become the Fourteenth Amendment was debated in the House on May 8 through 10. Stevens remarked that its provisions "are all asserted, in some form or another, in our DECLARATION or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This Amendment supplies that defect, and allows Congress to correct the unjust legislation of the States."[102] Representative Thayer stated that the proposed amendment "simply brings into the Constitution what is found in the bill of rights of every State," and that "it is but incorporating in the Constitution of the United States the principle of the civil rights bill which has lately become a law”
And
“In the ensuing debate, no one questioned Howard's premise that the Amendment made the first eight amendments applicable to the states.[117] Howard explained that Congress could enforce the Bill of Rights through the Enforcement Clause, "a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees."[118] Howard added: "It [the amendment] will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who happen to be within their jurisdiction."
And
“Howard's explanation that the Fourteenth Amendment would protect "the personal rights guaranteed by the first eight amendments of the United States Constitution such as ... the right to keep and bear arms" appeared on the front page of the New York Times[120] and New York Herald[121] and were printed in the National Intelligencer[122] and Philadelphia Inquirer.[123] The New York Times found his speech "clear and cogent,"[124] while the Chicago Tribune found that it was "very forcible and well put, and commanded the close attention of the Senate."[125] "It will be observed," summarized the Baltimore Gazette, "that the first section is a general prohibition upon all of the States of abridging the privileges and immunities of the citizens of the United States, and secures for all the equal advantages and protection of the laws."[126] Other newspapers were impressed with the length or detail of Howard's explanation.”
From “Intent of the Fourteenth Amendment was to Protect All Rights” by Jon Roland
It was the Courts, deciding that they did not want to dispense with 80 years of precedent, much of which they wrote, that resulted in their selectively ‘incorporating’ the Bill of Rights. It was not the Intent of the drafters of the Amendment that the courts ignore the amendment. It was simple willfulness on the part of the court. It took another 40 years for the Courts to discover the intent of the Amendment. To this day there is no case law regarding the 2nd Amendment, though the 14th was drafted in good part to prevent Southern states from seizing arms from fee blacks and preventing them from voting.
I'm no constitutional scholar, but I remember reading somewhere where the 1a was used against a southern state jailing baptist ministers in the early republic. I'm sorry for not being able to cite sources, but if true, it would mean the fed. bor would trump the states, which should be the case, IMHO.
The First Amendment was not incorporated to the states until 1925. Gitlow case IIRC. The Fifth Amendment 1898, all the rest from the 1930s on. So in fact incorporation is a policy from activist courts.
"The First Amendment was not incorporated to the states until 1925. Gitlow case IIRC. The Fifth Amendment 1898, all the rest from the 1930s on. So in fact incorporation is a policy from activist courts."
Yes, but not in the way you imply. If you read the debate surrounding the 14th you will find that it was universaly considered an act that incorporated the BOR into state law. The debates were clear as was the intent of those founders.The reporting of those debates in the press was also very clear. It was the courts of the time that refused to acknowledge that the 14th even existed.
Read the opinions of the time. Try US v Cruikshank on the 2nd amendment. The court, despite the 14th, simply reasserted the pre civil position that the BOR was not applicable to the states. This would be the same as the country passing an Amendment allowing women the vote and then having the Court simply ignore it and defer to older case law.
That was what the Court did. They pretended the clear, well documented intent of the 14th simply did not apply. The court trumped the Constitution, exactly as they did in Kelo and in CFR legislation.
It was the Courts in the 19th century that ignored the intent of the 14th, when they noted the amendment at all, that were the activists and it was the courts of the 20th century who bothered to read the Amendment that got it right.
Only if you come from the mindset that the federal government was superior to the states, which it wasn't. Barron v Baltimore specifically stated the intent of the Framers. If we accept your view, then we must accept the 14th Amendment in and of itself changed the relationship between the federal government and the states, which it clearly (at least for over 30 years) did not.
interesting. I'm going to take your word for it, and I guess I stand corrected.
Do you think they should apply across the states? (activist courts notwithstanding.
You're right, if the law is written in a statute and the judge isn't given discretion.
As it is our system is so full of discretionary power that the Rule of Law, which Americans worship as an idol, really means the opinion of an official, subject to review by the opinion of a judge. But that's the Common Law for you! Always been that way too.
One cannot go back through the pages of American legal history and find it to have been noticeably more just than it is now. It's not as though there was a "golden age" of law in the US that has been lost because of some chicanery in the present. American law has always had grotesque flaws. But focus on trying to change them, and you will have everyone come out of the woodwork to defend "the tradition", etc.
“Only if you come from the mindset that the federal government was superior to the states, which it wasn't. Barron v Baltimore specifically stated the intent of the Framers. If we accept your view, then we must accept the 14th Amendment in and of itself changed the relationship between the federal government and the states, which it clearly (at least for over 30 years) did not.”
Barron v Baltimore from 1833? Are you saying that case law from almost 30 years BEFORE an Amendment to the Constitution trumps the Amendment?
It was not my view, it was the view of the drafters of the 14th Amendment that what they were doing changed that relationship, as did the Civil War.
This is Hoe Senator Luke Poland of Vermont put it:
“It is essentially declared in the Declaration of Independence and in all the provisions of the Constitution. Notwithstanding this we know that State laws exist, and some of them of very recent enactment, in direct violation of these principles. Congress has already shown its desire and intention to uproot and destroy all such partial State legislation in the passage of what is called the civil rights bill.... It certainly seems desirable that no doubt should be left existing as to the power of Congress to enforce principles lying at the foundation of all republican government if they be denied or violated by the States. “
I would consider that a pretty definitive description of how those who wrote and debated the Amendment thought.
As to your cite, it was made mute with the passage of the Amendment.
Yes, the whole zoning business is certainly a MAJOR intrusion into private life, essentially converting almost every town council into a giant Homeownerers' Association.
I am certainly not arguing in FAVOR of the way we govern this country. It is a mess.
However, I have learned through long experience that the moment I make any proposals at all as to how to fix the mess, a tremendous amount of anger is immediately unleashed. And so I have concluded it is hopeless. Legal reform in America is completely hopeless. Americans hate being slaves of their legal system, but they love the idea of Law so much that they will not change anything that really weakens it. What every American really WANTS is a set of laws that comports perfectly with his own personal view of how things should be, and is enforced TO THE LETTER against any criminal miscreant who DARES to defy the law.
But, since the laws are just a compromise mish-mash, everyone hates a whole bunch of laws - so the law is often simply bad, or incoherent - but what DOES bleed through is the RELENTLESS American desire to enforce law and hammer to a cross anybody who deliberately defies the law.
Consider the case of Bobby Fisher - chess nut. No question he's a strange man. Back during the Cold War, he was told it was illegal for him to go to some country and play a rematch with Spassky. He decided it was a game, and if he wanted to play a game, it was his own business, not the government's. Now, decades later, the Federal government has relentlessly pursued him around the world, as an international outlaw. They tried to get him extradited from Japan. He's in exile in Iceland. The government points out he faces a TEN YEAR SENTENCE, for playing a chess game that the government told him he was not to play.
That is ABSURD, and for the Attorney General to not just DROP this crap makes him an oppressive little Prussian idiot. Obviously. It was a CHESS GAME. The USSR is gone. Drop it. Forget it. Fisher's been punished enough. He's been put through Hell. He "got away with it", but he's paid, big time. Let it go. THAT would be justice.
But watch how many people come out of the weeds to scream that he BROKE THE LAW and DEFIED REAGAN (or whoever) and therefore he DESERVED EVERY DAMNED MOMENT OF SUFFERING HE GETS!!!!
Americans are like that about the Law.
And whatever the law is, however much 90% of the people hate it, the 10% who LOVE that Law and agitated for it are as determined as recounted about to see it enforced.
This is why America is a great place to live, so long as you never come under the scrutiny of the government. The moment that you do, it becomes an oppressive, abusive and altogether Prussian place.
Fact is, cities have the right, under the US Constitution, to take private property and give it to other private developers in order to get more tax money. The Supreme Court said dso, thand the Supreme Court is the de facto law of the land. It doesn't matter that the Constitution can be interpreted to say otherwise, because the supremacy of the Supreme Court is ENFORCED by force of arms, and nobody is willing to fight the government over the principle. The law is what the law does, and the federal law of America is that eminent domain taking of private property to hand it over to the richer guy who wants it is legal. Don't like that? Change the state constitution. If developer interests in your state are too strong, you won't even be able to do that.
Really hate it?
Rebel.
Americans will never take that last step.
And therefore, the Supreme Court will continue to be the supreme law of the land.
It's a sorry state of affairs, but that's the way it is.
"No, for a strict constructionist, one would have to also note the amendments and the debate surrounding them. Using that criteria, the 14th trumped the intent of the founders and the intent of the drafters of the 14th was to incorporate the bill of rights into state law."
Fair enough.
And the original intent of the Founders was that the Supreme Court would interpret these things (see The Federalist Papers), and it did. Just as the Federal government condemned property to give the large land grants to the railroads, untrammelled by any pre-existing claims, the states can choose to do what they are doing here.
It stinks, but the solution is legal and political, not constitutional. Pass a law, or amend state constitutions, so that cities and states can't do this. Until that happens, they can. THe Supreme Court says so, so there's no recourse to federal court.
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