Posted on 06/24/2005 7:54:55 AM PDT by JCEccles
[Mman] - No. SCOTUS has ruled that government has the Constitutional power to exercise Eminent Domain broadly. However, the Constitution is a floor, not a ceiling, when it comes to rights.
Scotus ruled that there is no constitutional floor under "public use"; -- that localities can simply confiscate property for the 'public good'.
Individual states can pass laws that grant citizens more rights than are in the Constitution. An individual state, for example, could pass a law that completely banned the use of Eminent Domain by that state.
Or that, conversely - under the same concept, they could simply 'pass a law' to confiscate property for the public good, disregarding the constitutional prohibitions of the 10th Amendment.
This outrageous decision reinforces the democratic 'majority rules' view of our Constitution, and ignores all it's republican principles of protecting individual inalienable rights.
I don't understand your reasoning.
The use of "public benefit" to argue property cases opens up a whole new can of worms.
Public benefit would open property to endless abuse under a doctrine of the common good. Public benefit could mean anything, to anyone, at anytime. Public benefit appears to be nothing more than the American version of the Marxist "common good."
Under the common good, or public benefit, the good of the group would constantly trump the rights of the individual. Group rights or public good are rampant in socialist/totalitarian governments.
On the other hand, public use severely restricts the condemnation of land under eminent domain. Public use restricts the seizure of property to things like schools or roads. In the USSC decision the court clearly, and wrongly in my opinion, used the concept of "common good" to allow the seizure of private property. It's certainly not a "public use" to seize property and give it to a developer to build an office or a factory. The public cannot use a factory or office.
I'd like to see your reasoning in using "public benefit" to fight property rights cases.
Hmm. I am inclined to respond that I can see no conceivable way for the Supreme Court, regardless of makeup, to strike down the Utah legislation under ANY theory. But then, like a cartoon mouse painting an exit hole on a wall to escape a cat, the Supreme Court has been known to come up with real surprises (Roe v. Wade, for instance).
I agree with you for far more reasons that the Kelo decision that it is imperative to replace the liberal supreme court justices who gave us the Kelo decision with justices of a more libertarian (in a property sense) bent. Janice Rogers Brown would be an excellent replacement.
It should also be kept in mind that the Kelo decision concerned a local taking, not a federal taking. Because of the supremacy clause no state legislation can trump a federal taking. Federal takings will have to addressed on their own terms.
I agree. And I think there is support on both sides of the aisle for this.
I'm telling you that the private use argument isn't working, it isn't a winner. Now you can complain that the alternative is bad, but you sure aren't winning with the pitcher ya got. Time to change pitchers.
Ok, that's good to know. Any relation to Marriner Eccles, by the way?
What big city has rent control other than NYC?
Frank another interesting article relevant to our discussion.
Interesting that we take the EXACT same view of this development. But I'll bet you get less flack for it. LoL.
I agree. Get those constitutions amended.
It will have not effect on federal projects. State law cannot countervene federal.
The issue is how much leeway should the states and the citizens in those states have in setting their own course without interference by the federal government? There has been constant tension on this point throughout our history. It is a very complicated issue.
In the aftermath of the Civil War and the ratification of the 14th Amendment the law settled increasingly on reining in the states and restricting the powers of state and local government vis a vis the federal government. Ostensibly this was to ensure that all citizens would enjoy the same fundamental rights irrespective of the state that each citizen lived in. It became much more than that as a result of FDR's New Deal and continuing through LBJ's Great Society programs to the present.
If anything, liberal supreme court justices have demonstrated a bias in favor of protecting and advancing social liberalism to the extent of inventing rights whole cloth as in the Roe v. Wade (the right to an abortion as an adjunct to the right of privacy enunciated in Griswold v. Connecticut). On the other hand, they have shown a bias against protecting personal property rights, a bias that dates back more than 70 years.
Today's court would apparently uphold an inner city woman's right to have a third-term abortion while simultaneously upholding the city's right to condemn her home so that a private abortion clinic could be built there.
No (although his great-great ganddaughter was a law school classmate). Eccles is a famous name in Utah, no doubt.
My "JCEccles" has reference to aussie Nobel laureate Sir John C. Eccles, one of the great neurophysiolgists of our era. A faithful Christian, he believed he had found empirical proof for the existence of the soul.
I like the idea of placing this protection on an express and absolutely solid constitutional footing. I think McClintock is ginning up the machinery in California to do just that. I hope he succeeds.
As a practical matter, it would seem that state constitutional amendments can be more easily and quickly implemented than a federal constitutional amendment. But I'd support the latter too.
Utah is a beautiful State, in its way.
But the multinationals can have that arbitrated at the WTO.
And that 'wrong message' is what? That people will not tolerate robery under color of authority?
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