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“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.... :eek:nfloor If you're looking for something a little more in-depth, pick up Smith & Roberson's Business Law and look at p. 1054.
 

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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.
 

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bugeyed said:
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...
 

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Keith_J said:
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.
 

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jim schmidt said:
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.
 

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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/facts/funddocs/billeng.htm
 

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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.
 

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jim schmidt said:
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.
 

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BusaDave said:
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.
 

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Amendment X is not really applicable in this case. Per Amendment V, the concept of eminent domain is legalized. Thus it is a power which the federal gov't may hold sway over. The concept of federal powers vs. state powers isn't really applicable here because the Supreme Court is not ruling on the balance of powers, but instead is ruling on the constitutionality of the seizure of property. The right for (or against) the seizure of property is guaranteed to individuals via the Bill of Rights. Laws affecting these guaranteed rights, whether they be federal, state, or local, are thus analyzed for their constitutionality and are struck down or upheld depending upon the opinion of the Court.

The Court has had this ability since John Marshall's reign in the early 1800s. I can't remember the case at this point; it did have something to do with the presidential appointment of constables right before Jefferson assumed office. I think it was Marbury v. Madison, but I might be wrong.

As to the BOR being rights of individuals vs. rights limiting government, they are really the same thing. Individuals are granted said inalienable rights to inhibit government's encroachment on people's personal lives. So it sounds like Jim and Keith are really in agreement with each other... :phatyo

Finally, in personal reference to Jim, I was not trying to kill the messenger per se, only argue against the strict constructionist statement (of which I consider myself one). My recollection of the living document concept was that a living document is updated with the times. Thus as political opinions, religious notions, etc., change, the document is updated by legislatures & judges to reflect that change or societal shift. A strict constructionist viewpoint tends to view laws in the letter in which they were written. Unfortunately, with the wording in the Constitution regarding the concept of eminent domain, judges are essentially forced to assume the living document method. The statement of public good or for the public use has no clear definition, and thus will change itself over time, molding itself to society's opinions. Other laws, such as the right to bear arms, are more easily argued from a strict constructionist point of view.

I apologize off the bat if I get a bit heavy into this. I live in a cornfield where people don't generally debate political and economic subjects, so I consider this an outlet. Although I may disagree with some of you, I appreciate your opinions as they force me to think of a response.
 

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I meant that blaming the court was "kill the messenger." Not that I thought I was the messenger.

That said, the issue was not Eminent Domain as you have noted. It was whether the Feds can regulate the local's right to define it. In other words, can the Federal Government tell a state or local government that their definition of the circumstances under which they may excercise Eminent Domain is incorrect. They were not granted this right explicitly in the Constitution so it does default to Amendment X, I think.

BTW, a Strict Constructionist view also ignores records of legislative intent and legislative history. If it were an intellectually honest viewpoint, it would also have to disinclude "signing statements." Since it ignores legislative intent, it also reasonably follows that it ignores changes in science, technology, or civilization that were unforseen by the Founders. It would be interesting if its advocates would explain it in light of, say, Brown V Board of Education. However I think this would point directly to its failure as a theory.

And I too appreciate both your candor and your civility. I don't seem to find it all that common among people who disagree with me. :cheers
 
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