RE: The Constitution’s Fifth Amendment allows the government to take private property for “public use,” so long as “just compensation” is paid.
NOT IN THIS CASE IT IS NOT.
The Fifth Amendment Public Use Clause authorizes a city to exercise its eminent domain power only “for public use.” Yet, in Kelo the court permitted a city to transfer one homeowner’s property to another private party as long as there would be some future “public benefit.”
The perceived injustice of allowing the government to transfer a citizen’s perfectly well-kept land to a corporation for its own use generated dismay and anger throughout the public and resulted in a host of state constitutional amendments and other takings restrictions.
In a recent legal memo, “Revisiting Kelo,” The Heritage Foundation documents the confluence of errors in the Kelo decision and sketches where we can expect to go from here.
SEE HERE:
http://www.heritage.org/research/reports/2015/06/revisiting-kelo
In looking at the “modern trilogy” of public use cases, the memorandum surveys the step-by-step gutting of the property rights protections found in the text of the Public Use Clause. In this analysis of the case, the memorandum argues that the court erred in two fundamental ways: contorting the text of the Public Use Clause and missing Supreme Court precedent.
SEE HERE:
http://www.heritage.org/initiatives/rule-of-law/judicial-activism?activism-type=contorting-text
In both Berman v. Parker (1954) and Hawaii Housing Authority v. Midkiff (1984), the Court addressed cases involving nonfrivolous claims of injuries to the public: urban blight and oligopolistic land use. Historically, the government has had the right to protect the public by condemning property that injures the public.
In Berman, however, the court mistakenly concluded that “[t]he ‘public use’ requirement is … coterminous with the scope of a sovereign’s police power.” As a consequence of conflating the state’s eminent domain power (which is limited by the Public Use Clause) with its general regulatory power (which is a component of the government’s police power), Kelo misread decades of precedent that had more specifically addressed government use of police power under the 14th Amendment’s Due Process Clause, not the use of eminent domain.
Kelo also erred in treating the concept of “public use” as “public purpose.” The memorandum emphasizes that, because the court did not address a Public Use Clause question until late in the 19th century, it did not have the opportunity to articulate a well-developed theory of the meaning of the Public Use Clause that was grounded in the Framers’ intent. The text of the Public Use Clause limits takings to situations in which land would be used by the general public or by its representative, the government. Nevertheless, the Supreme Court has consistently read the term “public use” far more broadly as meaning mere public benefit.
Although the Supreme Court has continued to give lip-service to the proposition that the government may not take property from “A” simply to give it to “B,” the reality is that the court has never found a taking that fails the public benefit test.
in her Kelo dissent Justice Sandra Day O’Connor stated that no one but a “stupid staff[er]” could fail to imagine some public benefit from any government taking. With Kelo, what remained of the meaning behind the Public Use Clause went up in flames—and with it, the protection of citizens’ property rights.
Many scholars, even before the Kelo decision, saw the decisions in Berman and Midkiff as the death of the Public Use Clause. But three facts about Kelo—(1) it was a controversial subject; (2) the court was divided 5-4; and (3) O’Connor, who had written the court’s Midkiff opinion, dissented—ignited a national debate on the meaning of the Public Use Clause.
It is no surprise that conservative Justices Scalia and Thomas, together with Rehnquist decided AGAINST The City of London and the LIBERAL wing of the court decided FOR The City of London.
Noting that the Founding States originally decided that the states didn’t have to respect the rights protected by the Bill of Rights, the Supreme Court clarified in Barron v. Baltimore that prohibitions of government power in the Constitution apply only to the federal government, not to the states, unless such prohibitions specify the states. And here is how the Court accordingly interpreted the scope of the eminent domain clause of the 5th Amendment.
We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States [emphasis added].” — Barron v. Baltimore, 1833 .
The Constitution’s Clause 1 of Section 10 of Article I is an example of powers specifically prohibited to the states.
Low-information patriots are dealing with multiple lose canons with respect to what they perceive to be their “inalienable” constitutional rights, eminent domain controversies an example, because they are not being taught the Founding States' division of state and federal government powers as enumerated in the Constitution.
in fact, as much as citizens didn’t want to see Terri Schiavo starved to death, and with all due respect to Florida FReepers, I wouldn't be surprised if concerned citizens of Florida haven’t lifted a finger to work with their state lawmakers to make 10th Amendment-protected state laws which are more friendly to people like Terri because they still haven’t learned about the constitutional division of state and federal powers.