Eminent Domain bullshit

[BusaDave]

Originally Posted by Triple_Z

If you read the Constitution, you will see that Eminent Domain is permitted by the government as long as it passes two tests: 1) The land may only be taken if it is deemed to provide a public benefit & 2) Just compensation must be provided to the party the land is seized from.

You can correct me if I'm misinformed, but isn't the Constitution addressing eminent domain where the federal government is concerned. Regardless, even your description uses the word "government".

Not being a legal scholar, I would have to say a couple of things:

First yes, the recent ruling was the Supreme Court failing to intervene in the States provisions for eminent domain. I agree with Jim that this is probably the "correct" decision from the perspective of limits on power of the federal government.

However, I also believe that the states are in error if they extend the definition of "public good" to the point where ANY stretch of community improvement, including private for-profit development that increases the tax base, or worse for-profit owned and operated by the state, means they can literally take your property at will.

"Just compensation" is also a matter of some debate. Perhaps when I get a chance I will discuss this with family that were closely involved when the Interstate came through. I recall quite a bit of conversation about this issue when thousand of acres were being acquired and farms being split with miles to find a bridge to get to the property on the other side.

[jim schmidt]

I should remind that we all agree that the government shouldn't take your land for its own financial profit. We need not to forget our agreement on this as we disagree on the merits or details of the ruling.

The issue of state decisis as it relates to this ruling is not about whether states have the right to eminent domain, that's not in dispute. It's whether or not states have the right to define it as they choose. A Strict Constructionist reading of the Constitution says they do, because no power is granted to the Feds to define it. A Living Document interpretation might say they don't if it is believed that the framers either didn't anticipate this level of greed or didn't intend for citizens to be so abridged.

There is a strong case to be made for the latter, but not if you are a Strict Constructionist. I realize this idea is a big gob to swallow for many.

[Triple_Z]

Originally Posted by BusaDave

However, I also believe that the states are in error if they extend the definition of "public good" to the point where ANY stretch of community improvement, including private for-profit development that increases the tax base, or worse for-profit owned and operated by the state, means they can literally take your property at will.

I'll agree there, but "public good" has been defined in this manner, and unfortunately it's here to stay. Obviously the case involving Pfizer in New London was one. The other that comes to mind is Poletown v. Detroit. For this one, they basically demolished a section of town to allow GM to build a plant (despite alternative locations). The usual threat of mass unemployment if GM left was on the table, so Detroit made the grab, and Michigan upheld it.

And "just compensation" really depends on the area. In some areas, market value is what the property is worth (Janesville, WI for instance). In others like DC, your market value is probably nowhere near what you could get for a house on the open market.

In any case, the premise of my argument is that despite my disagreement with the concept of eminent domain, I don't see it disappearing. And the exact verbage of the Constitution is unfortunately very vague in this matter. It says what it does, and leaves a lot of room open for interpretation.

Hey, this whole argument makes me realize I may have actually retained something from Business Law....proof that there is hope for me yet.

[bugeyed]

Originally Posted by Triple_Z

I'll agree there, but "public good" has been defined in this manner, and unfortunately it's here to stay. Obviously the case involving Pfizer in New London was one. The other that comes to mind is Poletown v. Detroit. For this one, they basically demolished a section of town to allow GM to build a plant (despite alternative locations). The usual threat of mass unemployment if GM left was on the table, so Detroit made the grab, and Michigan upheld it.

And "just compensation" really depends on the area. In some areas, market value is what the property is worth (Janesville, WI for instance). In others like DC, your market value is probably nowhere near what you could get for a house on the open market.

In theory "just compensation" assumes prevailing market prices, in practice, the local polticians and private developers will team up to both profit on the land or house grab at the expense of the owner. Under conditions of Eminent Domain, the situation is such that the politicians have incentive to grab the property at a mere fraction of its value, and then profit by selling it on markup to a another private developer. The government in this case becomes the entire market, there is no open bidding process as would be the case if there was in fact "just compensation". Hence a private developer, instead of approaching you directly and negotiating a price with you for the land he wants to buy, will find it more to his economic benefit to have the government seize it from you on his behalf and then sell it to him for less than what he would pay if he had to negotiate with you directly. This kind of thing goes on all the time, it is happening on a mass scale in New Orleans right now.

Also I am curious where it states in the Constitution that Eminent Domain is allowed. Not disputing it is there, but I haven't checked. Maybe you can outline it for us.

[jim schmidt]

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

.....

[Triple_Z]

“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.” (Amendment V, United States Constitution, 1791)


If you're in for a 10-page read, I'll add the remainder of the paper I did on eminent domain.... If you're looking for something a little more in-depth, pick up Smith & Roberson's Business Law and look at p. 1054.

[Keith_J]

This isn't a case of State's rights. Amendments I-X are RIGHTS that NO GOVERNMENT may infringe upon. Does double jeopardy only apply to federal courts? May you be charged twice on say, a speeding ticket?

Triple Z gets it.

[bumblebee]

Originally Posted by bugeyed

In theory "just compensation" assumes prevailing market prices, in practice, the local polticians and private developers will team up to both profit on the land or house grab at the expense of the owner. Under conditions of Eminent Domain, the situation is such that the politicians have incentive to grab the property at a mere fraction of its value, and then profit by selling it on markup to a another private developer. The government in this case becomes the entire market, there is no open bidding process as would be the case if there was in fact "just compensation". Hence a private developer, instead of approaching you directly and negotiating a price with you for the land he wants to buy, will find it more to his economic benefit to have the government seize it from you on his behalf and then sell it to him for less than what he would pay if he had to negotiate with you directly. This kind of thing goes on all the time, it is happening on a mass scale in New Orleans right now.

Also I am curious where it states in the Constitution that Eminent Domain is allowed. Not disputing it is there, but I haven't checked. Maybe you can outline it for us.

This scenario will rarely happen in Florida...The condemning authority must provide the appraisal used to produce the offer...All appraisals of the property must be entered into court record of there has to be a hearing

If the property is/housed a business, you can provide the tax returns for the last 5 to 7 years and will be compensated for the loss of income plus the "fair market value" of the land.

My comment about the ballot is that even though eminent domain is a power delegated to the local/state/federal governments, citizens can restrict the conditions under which it can be applied to ones that are truly "public good" such as roads, parks, schools or utilities, by electing candidates to pass rules or by ballot initiatives...

[jim schmidt]

Originally Posted by Keith_J

This isn't a case of State's rights. Amendments I-X are RIGHTS that NO GOVERNMENT may infringe upon. Does double jeopardy only apply to federal courts? May you be charged twice on say, a speeding ticket?

Triple Z gets it.

I can't understand your reasoning. The Constitution itself is a document written to grant limited rights to the Feds. According to the Supremes, of rights granted, one of them is not the right to craft a certain definition of Eminent Domain that trumps a local government's definition.

Read Amendment X again. I don't think it says what you think it does. However I'm a dilettante as a constitutional scholar, so please explain if its me that is missing something.

[Keith_J]

Originally Posted by jim schmidt

I can't understand your reasoning. The Constitution itself is a document written to grant limited rights to the Feds. According to the Supremes, of rights granted, one of them is not the right to craft a certain definition of Eminent Domain that trumps a local government's definition.

Read Amendment X again. I don't think it says what you think it does. However I'm a dilettante as a constitutional scholar, so please explain if its me that is missing something.

Well put on your description...the Bill of Rights was written to define natural, individual rights that NO government may EVER infringe. Under your impression, a local government could put a person on trial twice for the same offense because prohibition of double jeopardy is only a federal issue . Get it?

The Bill of Rights is NOT "living and breathing document". It is well codified, succinct and to the point. It was written in this fashion because the Constitution was deemed to be vague in protection of freedoms.

But when you look at amendments that had been ratified, only to later be rescinded, you do have a "living, breathing document". The Bill of Rights isn't part of this by design. 10 Amendments in the Bill of Rights. 10 Commandments. No coincidence as we are "endowed by our Creator, certain, inalienable rights..." But I suppose once this has been trashed, the rest falls by the wayside.

[jim schmidt]

No, I'm still not getting you. Are you agreeing with the Supreme's ruling in this case? Because the amendment specifically says that the right is reserved to the states (being not enumerated as a federal right.)

Or are you just trying to make some philosophical argument to support Strict Constructionism? Can't have it both ways really, can you?

Or perhaps are you mistaking ratification for adoption?

Sorry to sound dense, but I just can't follow your meaning. Can you explain it without using other parts of the Constitution that really have nothing to do with it?

Here's the text, btw, if it helps: http://usinfo.state.gov/usa/infousa/...cs/billeng.htm

[Keith_J]

Damn you are dense. The Bill of Rights are INDIVIDUAL rights, not limitations of any government. It is called such because they are rights, not limitations.

[jim schmidt]

Oh, I see. You don't understand it. Thanks for the clarification.

[BusaDave]

Originally Posted by jim schmidt

No, I'm still not getting you. Are you agreeing with the Supreme's ruling in this case? Because the amendment specifically says that the right is reserved to the states (being not enumerated as a federal right.)

To expand slightly, the states OR the people.

[jim schmidt]

Originally Posted by BusaDave

To expand slightly, the states OR the people.

Correct, but the Feds are not empowered to decide which. So the "or the people" statement really has no meaning in this context.

Anyway, anyone who wants to learn more about this can check at this link: http://www.usconstitution.net/consttop_fedr.html

It is a fixed principle that the US Government may not specifically usurp rights it was not specifically granted. And a Strict Constructionist reading of the text leads directly to the conclusion drawn by the Supremes.

However I fully understand that Strict Constructionism is generally an explanation of convenience, along the lines of "Sends the wrong message."

However, please remember that I'm not arguing for the decision; I'm merely arguing that the Supremes did what they were sent there to do, came up with a reasonably supportable interpretation of the Constitution. I personally find the idea that a local government can take someone's land and give it to a mall builder to be despicable.

But all this shit is "kill the messenger" which I don't think is right either.