Is the Eminent Domain decision Constitutional?

[mike182d]

I was arguing over the eminent domain decision with a co-worker when they brought up the 5th Amendment:

"...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."

She said it implied that the Government can take property for public use in so far as there is just compensation. Is this a correct interpretation of the 5th Amendment?

Also, as I am not a Constitutional scholar, I am curious as to how the Eminent Domain decision differs from the 5th Amendment.

[commonerX]

""To use ED for increased TAX revenue is beyond perversion, and borders (if not interceeds) on Communism.
Period.""

Borders on it, it is Communism. What is more communistic then to say to a homeowner that your land is really owned by the state and we can do as we please with it, for the common good of the public.

[Non-Sequitur]

Not when the state law violates US Constitutional rights. For instance, had Connecticut interpreted its state laws and constitution to permit compelled confessions in violation of the US Fifth Amendment's self incrimination provision, I think you would see things differently.

I would, because the 5th Amendment protections against self-incrimination is very specific. But the Constitution does not define what 'public use' is, and the 10th Amendment gives Connecticut the right to do so.

[An.American.Expatriate]

the operative phrase is "public use".

This has traditionally meant roads, forts, and other such things that are, in the end "owned" by the government (public).

In the recent decision, "public use" has been expanded to "public good" - thus anything which is ultimately "better" for the public (i.e. increased tax revenues) is now allowed.

It is a "small" but very significant change - one that effectively removes your right to own property as it can be siezed at anytime "for the public good".

[Bluegrass Conservative]

This would have to include sentimental value and pain and suffering involved in moving as well as having to cultivate new relationships with new neighbors.

As someone who is in the process of moving right now, I sympathize with what you said. However, I disagree. the "just compensation" should be whatever the property's fair market value is.

[freedomfiter2]

If I'm not mistaken, isn't that the role of the Supreme Court?


Not entirely. The US Constitution is a contract between the Federal Government and the various State Governments. To be meaningful there must be a balancing force which works on behalf of the states.

[Captain Rhino]

Here is a link to the complete decision:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-108

If I understand it correctly, the decision is focused on whether or not you can use the 5th Amendment to block a particular project becaused the siezed property(combined with the property that was willingly sold to the development authority) ultimately ends up back in private hands. The decision does apply to the entire country. However, in the conclusion, the court invites the states to impose stricter definitions of public use than it has so far applied and says nothing in the decision prevents them from doing so.

A number of states already have restricted the use of eminent domain to support development projects and there have been proposals in other states to do the same since the Kelo decision came down.

[freedomfiter2]

Is that not, under the Constitution, the actual power given to the Supreme Court?

Yes but it was assumed that they would rely on the words of the Constitution in making their determinations,unfortunately they do not feel so bound and are therefore no longer a legitimate body.

[petro45acp]

"The decision of the court, in effect, changed the definition of "public use" to mean anything a local gov't wants it to mean. Too bad they didn't define "just compensation"........."

Here here!

If they paid on the usuriously high tax assessment values, they might have some willing co-conspiritors!

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[Jaxter]

"She said it implied that the Government can take property for public use in so far as there is just compensation."

I agree with this. It's the same as you can't be 'deprived of life, liberty, or property, without due process of law' which implies that you can be deprived with due process. That's also in the 5th Amendment. The difference in the recent SCOTUS case was that they took a persons house to build a mall or something because it would generate more tax money. Something like that.

[Noachian]

...the Government can take property for public use...

Watch the words "public use".

What the judges on the SC did was definitely unconstitutional in that they changed public use to public purpose. Anyone who can read the wording, and understand the meaning, of the Constitution knows this to be true.

The question lingering in the background in the Kelo case is: What checks are there on the court when it makes an unconstitutional ruling? Right now I don't see any, and that's not what the Framers had in mind. They thought the Congress would protect the people, but Congress does nothing against the court.

There are those, even here on FR, who would treat the SC judges with the infallibility of the Pope, and accept any ruling the court hands down as divine judgment. That's a sure road to tyranny.

[freedomfiter2]

As someone who is in the process of moving right now, I sympathize with what you said. However, I disagree. the "just compensation" should be whatever the property's fair market value is.


The market value of a piece of property is whatever the highest bidder will pay. Owners of property which is being siezed believe the property is worth more than what's being offered. Their valuation is the correct one.

[Bluegrass Conservative]

Owners of property which is being siezed believe the property is worth more than what's being offered. Their valuation is the correct one.

So they should just be able to name their price? Methinks there might be some price inflation if that were the case.

[sergeantdave]

Here's the Michigan Supreme Court ruling on taking private property under eminent domain looking at it from an originalist view -

---

The Michigan Supreme Court has ruled that local and state governments may not seize private property under their eminent domain power and give it to another private user.

In other words, the local government can’t take your home, land or business and give it to a strip mall, a car dealership, a high-tech company or any other private property owner.

The unanimous ruling on July, 30, 2004 returned common sense to private property ownership, reined in political hacks stealing property to reward friends or well-heeled connections and built a clear wall between the legal concepts of private property and public use.

“We overrule Poletown,” the Court wrote, “in order to vindicate our constitution, protect the people's property rights and preserve the legitimacy of the judicial branch as the expositor, not creator, of fundamental law.”

This statement indicates that Michigan’s highest court has rediscovered its constitutional and traditional role as interpreter of law, not creative writer of law.

The County of Wayne v. Hathcock ruling overturned the infamous Poletown decision made by the same court in 1981.

Back then, the city of Detroit wanted to bulldoze the Poletown neighborhood and clear it for a GM auto plant. Some rebellious property owners rejected the city’s offer for their homes and the idea of seeing their homes and property seized and given to another private owner, so the city moved ahead with condemnation under eminent domain.

The key here is expanding the phrase “public use” into the “public good.” Public use is taking property to build roads and schools for the public to use. Public good is stealing property based on ever-changing political whims for shopping malls, open space and biological diversity.

In the July ruling, the court correctly studied this matter from the view of original intent. In other words, what did the lawmakers originally mean when the law was written?

Justice Robert Young called this seizure of property under Poletown “a radical departure from fundamental constitutional principles.”

“In this case,” wrote the court, “Wayne County intends to transfer the condemned properties to private parties in a manner wholly inconsistent with the common understanding of ‘public use’ at the time our Constitution was ratified.”

The court rejected the argument of local governments that “a private entity’s pursuit of profit was a ‘public use’ for constitutional takings purposes simply because one entity’s profit maximization contributed to the health of the general economy.” Taking private property for the benefit of private investors is wrong.

[Irontank]

The principle that the 5th Amendment even applies to a state law must rely on the belief that the drafters and ratifiers of the 14th Amendment intended, through the 14th Amendment, to make the BOR applicable to the states (no one claims that the BOR applied to the states before the 14th Amendment)

There have been many good books and law review articles debunking the fiction that the BOR was incorporated against the states by the 14th Amendment. Probably the most thorough analysis was done by Charles Fairman who reviewed all of the Congressional debates around the 14th Amendment, the state ratifying proceedings and other original sources...he wrote an article in the Stanford Law Review in 1949 in which he concluded that the proponents and ratifiers of the 14th Amendment did not intend to make the BOR applicable against the states. He compared the "mountain of evidence" supporting his conclusion with "the few stones and pebbles that made up the theory that the 14th Amendment incorporated Amendments I to VIII."

This should not surprise anyone...if the ratifiers of the 14th Amendment really intended to incorporate the BOR against the states...one would think they would have clearly done so...maybe drafted a provision that said..."the first 8 Amendments to this Constitution are incorporated against the states" or something like that...but, of course, they did not intend to do so...so those who like to still pretend that the BOR applies to the states claim that it is done through the clause of the 14th Amendment that reads: "Nor shall any state deprive any person of life, liberty or property without due process of law"

If you're confused as to how that clause can be construed to apply the BOR to the states...you should be...it seems that such a ridiculous construction can only make sense to a lawyer

[The_Victor]

The question remains, if not the Supreme Court then who?

All of them. Every government official from top to bottom. I'm not saying that the SC shouldn't be the final arbiter, someone has to be. It's just that the rest of our government has abdicated the responsibility to the court, when it should fall on them all.

[maryz]

As Thomas pointed out, that's why they called it a public "purpose" and pretended it meant the same thing.

[MamaTexan]

She said it implied that the Government can take property for public use in so far as there is just compensation. Is this a correct interpretation of the 5th Amendment?

As it was stated, yes, she is correct, but the Supreme Court was wrong.

The problem is the word PUBLIC. Many people think public means anything used by the public, but it does not.

Under original intent, public use means forts, military bases, roads, schools, etc. Things owned by the government and used by the people. It does NOT mean taking property from private ownership and giving it to a corporate entity to increase tax revenue.

_______________________________________________

[A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it."
Calder v. Bull, 3 Dall. 386, 388 (1798)

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"The moment the idea is admitted into society that property is not as sacred as the laws of God ... anarchy and tyranny commence. PROPERTY MUST BE SECURED OR LIBERTY CANNOT EXIST"
John Adams

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Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.
James Madison's Essay on Property (1792)

______________________________________________________________________ Men are endowed by their Creator with certain unalienable rights,-'life, liberty, and the pursuit of happiness;' and to 'secure,' not grant or create, these rights, governments are instituted. That property which a man has honestly acquired he retains full control of, subject to these limitations:

First, that he shall not use it to his neighbor's injury, and that does not mean that he must use it for his neighbor's benefit;

second, that if the devotes it to a public use, he gives to the public a right to control that use;

and third, that whenever the public needs require, the public may take it upon payment of due compensation.

BUDD v. PEOPLE OF STATE OF NEW YORK, 143 U.S. 517 (1892)

[wildbill]

Read the sentence with special regard to the words "Public Use"

In a series of decisions, the Court moved the meaning of the sentence from 'public use' to 'public benefit.' For example, they said it was constitutional to take land (largely old tenements) from the private sector and put the land into public use as housing projects (although this reduced taxes which seems to be the major benefit cited in the recent decision).

So 'public use' became 'public benefit' and once the camel's nose was under the Contitutional tent...

[SierraWasp]

"Public good is stealing property based on ever-changing political whims for shopping malls, open space and biological diversity."

Talk about being "far reaching!" Especially for "open space and biological diversity!!!" That's what's right around the corner from GANG-GREEN,inc.!!!