Posted on 05/19/2008 11:03:57 AM PDT by Tolerance Sucks Rocks
The U.S. Supreme Court created a huge political backlash when it ruled that local governments could use eminent domain to seize private property and transfer it to other private owners for "economic development." Since the Kelo ruling in 2005, 42 states have enacted limitations on eminent domain — not always effective ones. But like lawmakers in many other states, some California officials are trying to block real eminent domain reform.
On June 3, Californians will vote on Proposition 99, a ballot initiative sponsored by groups representing cities, counties, redevelopment agencies and other pro-condemnation interests. It purports to protect property rights against eminent domain, but it actually provides almost no protection.
Two San Gabriel Valley cities illustrate the dangers of unbridled condemnation authority. Baldwin Park plans to use eminent domain to demolish more than 500 homes and businesses and transfer the land to a politically influential developer who plans to build a mall. La Puente is trying to use eminent domain to take over a small shopping center, displacing 13 small businesses. The city claims that the area is "blighted" — making it eligible for condemnation under state law — even though there is no evidence of dilapidation.
Both of these "takings" of private property would probably be permitted under Proposition 99, because it protects only owner-occupied residences against condemnations with the purpose of transferring property to "private persons." That leaves renters — 42% of Californian households — unprotected. If the buildings they live in are condemned, renters can be forced out even if their leases haven't expired. Owners of farms, small businesses and homeowners who have lived in their residences for less than one year also would remain vulnerable.
Even the protection for homeowners covered under Proposition 99 is likely to be ineffective, because the measure allows the condemnation of owner-occupied homes if they are "incidental" to a "public" project. This means that homes could still be taken for transfer to private developers if the proposed project allocated some space for a "public" facility such as a community center or library.
Government officials also can say that their true purpose is promoting "development," thereby circumventing the ban. Or they could argue that the new owners of any condemned properties are "public persons," by virtue of business-government "partnerships" for local development.
Also on California's June ballot is Proposition 98, which really would forbid "economic development" condemnations and other abuses. Absent Proposition 99, Proposition 98 would likely become law — as have anti-Kelo initiatives in 10 other states. Proposition 99 would invalidate any other eminent domain referendum passed on the same day so long as 99 receives a greater number of votes than Proposition 98. Many voters are unlikely to realize this.
Economic development and blight takings often transfer property from the poor and politically weak to the politically powerful. Since World War II, from 3 million to 4 million Americans have lost their homes to such condemnations.
Many of the eminent domain laws passed since Kelo — including California's 2006 law — are likely to be ineffective. Legislators have passed bills that only appear to protect property rights. The most common allow economic development condemnations under the guise of alleviating blight, which many states define so broadly that almost any neighborhood qualifies, as in the dubious La Puente case.
An August 2007 survey by the Saint Consulting Group found that only 21% of Americans know whether their state has enacted eminent domain reform legislation since Kelo, and only 13% know whether that legislation is likely to be effective. Proposition 99 is a particularly skillful attempt to exploit political ignorance to block effective eminent domain reform. Californians shouldn't fall for it.
That’s one less item I need to think about on my absentee ballot. . . :)
“It purports to protect property rights against eminent domain, but it actually provides almost no protection.”
Personally I think that the biggest clue for the clueless is that Schwarzenegger backs 99. Hello!
ATTN ALL CALIFORNIANS: READ THE TWO PROPOSITIONS. DON’T RELY ON THE GAZILLION MAILERS DUMPED IN YOUR MAILBOX TO KNOW THAT PROPOSITION 99 IS A SCAM.
NO ON Prop. 99.
I figured 99 was bogus when they listed the radio ad sponsors at the end of the spot - AARP and various public employee unions and Chamber of Commerce type government groups (I forget the exact list). All notorious big government syncophants.
The entire purpose of Prop 99 was to confuse the voters, to keep Prop 98 from passing.
Your public servants at work!
The USSC did nothing wrong by the federal Constitution when it decided Kelo in favor of the state.
The reason that the MSM got its panties bunched when the USSC decided Kelo in favor of the state is because the MSM swallows its own politically correct perversions of the Constitution. And the reason that the MSM was able to spook the people with the USSC's "wicked" decision is because neither do the people understand what the Constitution says - or doesn't say - about the eminent domain powers of the states.
The main constitutional misunderstanding with Kelo is that, unless otherwise stated, all general prohibitions on government power in the federal Constitution apply only to the federal government, not to the state governments.
For example, consider that, unlike the 5th A., Sec. 1 of the 15th A. explicitly prohibits both the federal government, aka the United States, and the states from prohibiting people from voting based on race.
15th Amendment, Sec. 1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.So regardless that the 5th A. limits the federal government to buying private land for public use, the states don't need an excuse to buy private land. But the states are finally wising up by making state laws to protect private property from state eminent domain grabs.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, 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.
According to your line of reasoning (that the prohibitions in this amendment only apply to the federal government) a US citizen can face double jeopardy in state courts, cannot "plead the fifth" in state courts, and can be deprived of life, liberty or property without due process of law by a US state.
I will admit that this can get confusing.
Again, general limits on government power in the federal Constitution, such as the 5th A. provision that private land can be purchased by "the government" only for public use, apply only to the federal government, not to the state governments. This was emphasized by Chief Justice Marshall when the USSC decided Barron v. Baltimore (1833), a state eminent domain case.
"The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. [...] If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states." --Chief Justice Marshall, Barron v. Baltimore (1833)Only when the federal Constitution explicitly prohibits or limits a given government power to the states, as examplified by Sec. 1 of the 15th A., are the states prohibited as well.
15th Amendment, Sec. 1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.In fact, initially, only the federal government was required to respect personal privileges and immunities enumerated in the federal Constitution. This is what the private land owner Barron didn't understand. His 5th A. protections from the federal government did not apply to the states.
However...
The post Civil War 14th A. made it mandatory for the states to respect the personal protections of the federal Constitution as well.
But...
Regardless that the honest interpretation of the 14th A. makes it mandatory for the states to respect the personal protections of the federal Constitution, general prohibitions and limitations of government power by the federal Constitution still apply only to the federal government, not to the state governments. The 1st A.'s prohibition on federal power to regulate religion, for example, does not apply to the states, except by politically correct perversions of that amendment, although such power is now limited by the 14th Amendment.
So Baltimore would now have to pay Barron for his land, as opposed to not compensating him. But Baltimore still wouldn't need an excuse for buying his land; I actually don't know what eminent domain protections that Ohio has now.
"Raising revenue" is not a legitimate purpose of any Federal, State or local governmental entity. Specifically, "raising revenue" is not a legal justification for any taking by eminent domain.
Thanks for the explanation - I understand your reasoning regarding Kelo now. Not that I’m completely sold on your interpretation :-) but I do get what you’re saying.
My explanation of the scope of the federal Constitution is based on John Bingham's discussion of the 14th A., Bingham being the main author of Sec. 1 of the 14th Amendment. In fact, I brought up Barron v. Baltimore (1833) because Bingham emphasized that case in his post-ratification discussion of the 14th Amendment. See Justice Marshall, Barron v. Baltimore and John Bingham on the following page in the Congressional Globe, a precursor to the Congressional Record.
http://tinyurl.com/y3ne4n
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