heh-nice to know the law goes both ways

[jeremy885]

http://news.bbc.co.uk/2/hi/americas/4639374.stm

If this doesn't kill that bs ruling, I don't know what will.

[Mjcpr]

Oldnslo.

Oh, law that goes both ways. Nevermind.

[JohnnyMack]

I saw that.

I hope they do it.

[1stTimeCaller]

I'll bet you do, I'll bet you do...

[OUstudent4life]

Yeah, normally I don't root for any "crazy" political plot from either side, but this one I'm 100% behind.

Of course, now that I've said that, I bet my dog was just claimed under eminent domain.

[jeremy885]

Well, I guess they're going to have to try something else.

http://www.channelcincinnati.com/politics/8028125/detail.html

[SicEmBaylor]

I was on my way into the Gap one VERY rainy day and there was a teenage girl standing in the rain soaking wet collecting signatures. So I asked what she was collecting signatures for and she tells me she's starting a petittion to "Ask the President to stop community's eminent domain authority." Anyway, I signed the petition, but I explained to her that it would take either A) A new Supreme Court ruling overturning the previous decision which isn't likely for a very long time or B)The states themselves restricting their eminent domain authority via constitutonal amendment or legislation.

[handcrafted]

Well, I guess they're going to have to try something else.

http://www.channelcincinnati.com/politics/8028125/detail.html

They caved. Souter did not comment publicly, but I bet his lawyer(s) called the city and threatened to tie them up in litigation for the next 10 years and bankrupt the city in the process. Eminent domain cases take for-freaking-ever.

[chriscappel]

I wonder how that will work out...I hope they get the hotel in....

[Okla-homey]

Historically eminent domain rulings are all over the place. Its kinda scary. Just seems to me that if a community or state can cook up some rational basis on which to make you sell your place, they'll get it. Its been that way as long as we've had the Constitution.

[BudSooner]

:D :eek:

[85Sooner]

I wanna swing the first AX

[Okla-homey]

oh yeah, (its rare that something like this comes up while I'm studying it) there are atually two flavors of eminent domain "takings" for public use.

1) physical takings: where the state gets the property outright after giving you due process = fair notice and and an opportunity to be heard ) and then paying you something reasonably indexed to fair market value.

2) regulatory takings: when the state says you can't do something on your property because of some "substantial government purpose" like when they declare your boggy property a "wetland" and won't let you develop it so the pretty duckies have a place to roost.

that is all.

[Frozen Sooner]

*sigh*

Everyone hates judicial activism unless what's actually IN the constitution doesn't protect a right they think they should have...

[SicEmBaylor]

*sigh*

Everyone hates judicial activism unless what's actually IN the constitution doesn't protect a right they think they should have...

But those Constitutional protections are suppose to protect us against FEDERAL violations; not state. While the Courts have extended those protections to include the states it isn't what I personally subscribe to.

[Frozen Sooner]

But those Constitutional protections are suppose to protect us against FEDERAL violations; not state. While the Courts have extended those protections to include the states it isn't what I personally subscribe to.

*Sigh*

People always decry judicial activism unless what the Constitution actually SAYS conflicts with what they think their rights should be.

Amendment V - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

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.

Now, note that nowhere in the Constitution is "Public Use" defined.

Amendment X - Powers of the States and People. Ratified 12/15/1791. Note

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.

So, since taking of private property for public use with just compensation is clearly not denied of the states, and the Constitution does not forbid the States from defining "public use" as "use that will generate the most tax revenue" the opinion of the Court was strictly Constructionist.

Unless, of course, you want to try to figure out what unstated rights are implied by expressly defined rights or to determine what the intent of the framers was. That seems relatively common-sense to me, but strangely the people that have hollered about Eminent Domain the most tend to not want to do that.

[usmc-sooner]

you know the sad thing is nobody likes this crap but most people won't say a damn thing until it hits them.

[Okla-homey]

FWIW, the eminent domain dealio is also impacted by the 5th and the 14th amendment...

requiring the taking to be for public use:

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 offence 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.

Impacting states takings power:

14th amendment:
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

therefore, what we have is a situation in which the federal gubmint or a state can take for "public use" IF they first give you notice and a hearing, are willing to pay you and the taking is "rationally linked to some conceivable public purpose" [Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).]

That is a lot of power folks.

[Frozen Sooner]

I posted the fifth amendment...;)

But yeah.

[handcrafted]

The issue here *is* common sense. "Public use" means use by the public.

Taking one person's private property and giving it to another person as private property is not converting land for public use.

Intent of the Framers is a proper and necessary avenue of inquiry. However, I think it gets us nowhere on the current controversy, because the Framers most likely never conceived of the idea that a local government might exercise ED in this way.

[Frozen Sooner]

Strict constructionism doesn't allow for common sense. What does the constitution SAY? Can "public use" be construed as "anything that benefits the public?"

[handcrafted]

Strict constructionism doesn't allow for common sense. What does the constitution SAY? Can "public use" be construed as "anything that benefits the public?"

You are mistaken, sir. Strict construction *must* and does allow for common sense and intent of the writer. That's what "construction" means. Otherwise it'd be called "literal reading".

Second question: no, it can't. The word is "use", not "benefit".

[Frozen Sooner]

Really? So why do constructionists get all huffy when people attempt to ascertain the intent of the framers when it comes to an implied right to privacy?

And no, I am not incorrect. Neener neener.

[handcrafted]

Really? So why do constructionists get all huffy when people attempt to ascertain the intent of the framers when it comes to an implied right to privacy?

And no, I am not incorrect. Neener neener.

Well, I personally don't get huffy. It's just that in some cases, the Court is misusing the term "intent of the Framers". I apologize for using Biblical terms with you, but the issue is one of "exegesis" versus "eisegesis". Extracting the meaning from the textual and historical evidence, versus having a preconceived notion of what you think it should say, and then reading things into the text that aren't there.

I maintain that the Court exhibits the latter behavior from time to time.

[skycat]

Strict constructionism doesn't allow for common sense. What does the constitution SAY? Can "public use" be construed as "anything that benefits the public?"

It would only be strict construtionism if the constitution actually SAID "public use" WAS "anything that benefits the public." Since the term is not defined, the court is inserting its own interpretation, which is most definitely not strict constructionism.

The court looked at what was there, and then granted the government what would appear to be the broadest possible set of powers that can be consistent with the verbiage. A much more limited set of powers would also be perfectly consistent with what is written.

[handcrafted]

It would only be strict construtionism if the constitution actually SAID "public use" WAS "anything that benefits the public." Since the term is not defined, the court is inserting its own interpretation, which is most definitely not strict constructionism.

The court looked at what was there, and then granted the government what would appear to be the broadest possible set of powers that can be consistent with the verbiage. A much more limited set of powers would also be perfectly consistent with what is written.

Not really. The terms "use" and "benefit" have specific legal meanings and they are different. The Court basically said that while the Framers *wrote* the word "use", they actually *meant* the word "benefit", which is totally wrong and just silly.

[Ike]

the problem is that public use can be construed to have as many definitions as you want it to have. Fer example, it might be considered "public use" to give that land to a private entity with an understanding that said private entity was going to locate a large business on the land which would greatly enhance the communities tax revenues. Those extra taxes might be more useful to the public than the land itself, but regardless, an argument can be made that this is indeed public use of the land (I think...Im no legal expert by far, so I'll defer to those that are).

[skycat]

the problem is that public use can be construed to have as many definitions as you want it to have. Fer example, it might be considered "public use" to give that land to a private entity with an understanding that said private entity was going to locate a large business on the land which would greatly enhance the communities tax revenues. Those extra taxes might be more useful to the public than the land itself, but regardless, an argument can be made that this is indeed public use of the land (I think...Im no legal expert by far, so I'll defer to those that are).

Absolutely. But what upsets people is simply the choice of such an exremely broad defintion. That choice of defintion was up to the court, and many people think they made the wrong decision.

[Ike]

Absolutely. But what upsets people is simply the choice of such an exremely broad defintion. That choice of defintion was up to the court, and many people think they made the wrong decision.


I don't know if it was the wrong decision, and here is why. I think that they had very little guidance from previous documents as to the broadness or narrowness of the term 'public use', and that may or may not be a good thing. It might be a good ruling because as time passes, the needs of a comunity for public lands can change drastically, so you don't want to immediately prevent something that might be a nessecity 100 or 200 years down the road, by sticking to a very narrow definition of 'public use'. What the court did essentially put the ball in the hands of state governments and congress to define what is acceptable public use. I really don't see a big problem with that.

[handcrafted]

Absolutely. But what upsets people is simply the choice of such an exremely broad defintion. That choice of defintion was up to the court, and many people think they made the wrong decision.

Well, if given the choice between a logical, practical definition and a dumbass definition, I'd expect our Supremes to choose the former. They don't always.

[skycat]

I don't know if it was the wrong decision, and here is why. I think that they had very little guidance from previous documents as to the broadness or narrowness of the term 'public use', and that may or may not be a good thing. It might be a good ruling because as time passes, the needs of a comunity for public lands can change drastically, so you don't want to immediately prevent something that might be a nessecity 100 or 200 years down the road, by sticking to a very narrow definition of 'public use'. What the court did essentially put the ball in the hands of state governments and congress to define what is acceptable public use. I really don't see a big problem with that.

To put it in the plainest language, allowing the government to seize property from an individual, and then sell that property to another individual, company, or corporation who will then use that property to make money, is something that hadn't been done before. That is what the government did at the most basic level, and it is a broad definition indeed that sees that as "public use."

That is not a power that I want the government to have.

Frankly, despite Froze's claim that this case was decided using constructionism, I think it's clear that this case is one of judicial activism. It's just that this time it was typically conservative judges who were the activists.

[OU Adonis]

Stupid law.

[Tear Down This Wall]

The problem here is good intentions gone awry. Originally these projects were supposed to bring "urban renewal" to poor, blighted parts of cities. However, somewhere along the way, it went from running off crack dealers, destroying their houses, and bringing in legitimate businesses to allowing private developers to steal houses from law-abiding citizens.

I've always been that rare Republican - I hate developers. It stems from my childhood, I suppose, because my parents had a friend who was a developer. I always thought the guy was a fraud. He ended up losing millions by building too many buildings that went unoccupied. Yet, he'd always get invovled with some other government boondoggle that allowed people like him to get back in the development business again.

I certainly don't mind the government aiding a community in cleaning out and cleaning up an area of a city dominated by a bad element. But, in my mind, the govenment steps way out of line when it takes land and property from law abiding citizens and hands it over to private developers who have already reaped a tax break. The whole affair is dirty and sickening.

[Frozen Sooner]

That choice of defintion was up to the court, and many people think they made the wrong decision.

Wrong. The choice of definition was left up to the states explicitly by the US Constitution.

[skycat]

Wrong. The choice of definition was left up to the states explicitly by the US Constitution.

No such explicit language exists. If it did, the court would not have heard the case.

[Okla-homey]

Folks just need to understand its not about what the Constitution says or doesn't say, its always about what the Court says it means.

[handcrafted]

Wrong. The choice of definition was left up to the states explicitly by the US Constitution.

Froz, I know you mean well, and you think you know what you're talking about, but you really kinda don't.

The writers had in mind their common understanding of the term "public use." Nothing more, nothing less. Whatever their common understanding of the term was, we should define it the same way. If they wanted to leave it to the states, they would have. They did not do it explicitly. If it was explicit, they would have written "the definition of what is a public use shall be left to the discretion of the states" or something like that.

We're talking standard legal rules of statutory construction here.

[skycat]

Here's the decision. (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-108)

Upon reading it, you'll find that it's clear that this case was about the definition of public use. It's also explicitly stated that the court is choosing a broad definition of the term.

From the opening of the first dissent:


Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:

"An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority ... . A few instances will suffice to explain what I mean... . [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) (emphasis deleted).

And that's all I have to say about that.

[Frozen Sooner]

Froz, I know you mean well, and you think you know what you're talking about, but you really kinda don't.

The writers had in mind their common understanding of the term "public use." Nothing more, nothing less. Whatever their common understanding of the term was, we should define it the same way. If they wanted to leave it to the states, they would have. They did not do it explicitly. If it was explicit, they would have written "the definition of what is a public use shall be left to the discretion of the states" or something like that.

We're talking standard legal rules of statutory construction here.

Ah, so now it's OK to talk about what the common meaning of a term was when discussing Constitutional issues.

[Frozen Sooner]

Here's the [url=http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-108[/url]

Upon reading it, you'll find that it's clear that this case was about the definition of public use. It's also explicitly stated that the court is choosing a broad definition of the term.

From the opening of the first dissent:


And that's all I have to say about that.

So now it's OK for stare decisis to be used when deciding on Constitutionality. What's next? People might start reading the Federalist Papers or something to determine intent! HORRORS!

[Frozen Sooner]

For what it's worth, by the way, I think that the Court made a horrible decision that goes against common sense and good public practice in this case. I've heard a heck of a lot of argument stating basically that. I agree with you-it's bad public policy to take private land for the sole purpose of increasing tax revenue.

[Frozen Sooner]

Froz, I know you mean well, and you think you know what you're talking about, but you really kinda don't.

The writers had in mind their common understanding of the term "public use." Nothing more, nothing less. Whatever their common understanding of the term was, we should define it the same way. If they wanted to leave it to the states, they would have. They did not do it explicitly. If it was explicit, they would have written "the definition of what is a public use shall be left to the discretion of the states" or something like that.

We're talking standard legal rules of statutory construction here.

Jeez, and here I thought that the 10th amendment was pretty explicit about what States could do.

[skycat]

Jeez, and here I thought that the 10th amendment was pretty explicit about what States could do.

What you're saying is that entity Y is allowed to do action X. Also entity Y is allowed to define action X. Your reasoning would allow the states to interpret the constitution however they see fit. After all, if its up to the states to define "public use", why can't they define every other non-defined term in the entire document.

That is patently absurd. It is also not the basis of the majority opinion.

[Frozen Sooner]

What I'm saying is that the Constitution is a document that you need to interpret at times to ascertain the actual intent of the framers and apply it to modern situations.

[skycat]

First, I want to apologize for a couple of pretty bad typos in my last two posts. One of them was made right as I was running out the door of work, the other as my wife and I were leaving for dinner. My last post in particular didn't make much sense as written. :(


What I'm saying is that the Constitution is a document that you need to interpret at times to ascertain the actual intent of the framers and apply it to modern situations.

The things is, that isn't really what you were arguing before. You were arguing that this decision was consistent with the constitution on a strict constructionist basis. It isn't.

Furthermore, to imply that a definition of "public use" that includes seizeing the property of a citizen for the reason of selling it to a private entity in order to make a profit would be acceptable to the framers, is a bit unfathomable.

[Frozen Sooner]

It is, but you don't want it to be. THat's OK.

It's pretty simple. The definition of public use is left to the states under a strict constructionist reading. What we think the framers would have thought of that is outside of a strict constructionist reading.

The state said that it was public use. The Court said "It's up to you to determine that."

Basically, I was arguing that strict constructionism leads to really ****ing stupid decisions like this one.

[skycat]

It is, but you don't want it to be. THat's OK.


What you're saying is only true if definition of English terms is a governmental power that can be ceded to the states. But that doesn't only cause nonsensical opinions, it renders the entire document meaningless.

A strict constructionist still has to construe meaning from the words in the constitution. Whether the word is "is", "the", "public", or "use".

Whatever, I'm not a strict constructionist. I just hate this enormously stupid decision.

[Okla-homey]

So now it's OK for stare decisis to be used when deciding on Constitutionality. What's next? People might start reading the Federalist Papers or something to determine intent! HORRORS!

Starrie Decisis* would ge a good pron name. She could go at it with her man Rex Judicata.

(*or a stripper at a TB near a law school.)

just saying.

[ouflak]

I agree with you-it's bad public policy to take private land for the sole purpose of increasing tax revenue.

I don't necessarily have a problem with the government doing something like what you describe on the seldom occassion when there is an obvious benefit to a local region, such as rebuilding a consistently populated, but down-trodden, area. But the government isn't doing this. They are taking the land away from private homeowners and giving it to a private developer on the promise that that private developer will be successful in generating tax revenues. Only in the most extreme applications of capitalist theory, can I perhaps see this as an interpretation of the American way.