[Obviously5Believer]

I've been recently been made aware of this issue and it continues to perplex me. I'm not certain about my stance on it, so maybe some discussion will clear things up.

Under the 5th amendment, the government can seize property, with just compensation, to use for the common good. Does this permit the government, federal, state, or local, to seize private property with monetary compensation and sell it to another private owner who may or may not make better use of the land?

The argument is that if I own a lakefront house and someone wants to build a condo on it, the government can take that land from me and then hand it over to the condo owner, who will pay more property taxes and thus benifit the "common good". This doesn't seem moral to me, but is it constitutional?

Sorry if this has been discussed before.

[wonder cow]

Under the 5th amendment, the government can seize property, with just compensation, to use for the common good.

This is true. But I would just point out that the 5th amendment was meant as a protection, that is the government can't take property without just compensation.

Does this permit the government, federal, state, or local, to seize private property with monetary compensation and sell it to another private owner who may or may not make better use of the land?

This is very controversial. Personally, I think it is a bunch of shit. The Supremes refused to intervene in a case in New Jersey last year over just such a thing. The prevailing argument (and this may be an over-simplification or even slightly off) is that they did not want to interfere with how the states and local governments use eminent domain.

I think that they should have clarified specifically for what purposes a local or state government can take property under eminent domain.

Taking from one private owner and handing it over to another is the biggest pile of stinking shit I ever heard of.

[Clausewitz]

The prevailing argument (and this may be an over-simplification or even slightly off) is that they did not want to interfere with how the states and local governments use eminent domain.

The court thought they didn't have the right to interfere.

The case hinged on what the 5th amendment means by "public use;" whether that meant, strictly, that confiscated property had to remain in public hands in order to be permissible or whether the public could use that property by giving it to another private owner. Clarence Thomas admitted in his dissent that both meanings - use in the strict sense that you have to physically be there for the public, and use in the broader sense that you can do whatever you like with it - were in use at the time of the amendment's writing.

Personally, I think I'm one of six people in the country, including five Supreme Court justices, who agreed with the court's ruling. Even many of my liberal friends were against it.

It seems funny to me that the state would have the power to take property but couldn't put it back into circulation. The state contracts private corporations all the time with huge amounts of public money, even on land it takes in eminent domain. It seems terribly asymmetric to prevent the state from giving property away when it can give money away, particularly when it is actually the smart thing to do.

The court said that it had to be a viable state interest, so they reserved the right to overturn a taking when they thought that it was for corrupt reasons. Economic motives for taking property are fine, even when they're vague, but if the court can detect a corrupt motive, then it's not alright, I think.

Personally, I think the law textually has even less of a restriction. It doesn't seem to me that the "for public use" bit actually has any limiting power; it just seems demonstrative to denote what's actually being talked about. The sentence is about giving just compensation, and if we said that the issue in Kelo wasn't about public use, I don't see how the text of the amendment actually would limit the action, or even require just compensation. And Thomas seems to toy with this idea in his dissent though he throws it out as rubbish. The "public use" jurisprudence we have, I think, comes from a helluva lot of case law, which I'm willing to live with.

[The American Lion]

Its ok for the government to take your property to build roads, schools, firehouses and etc. But taking your property just to gain more tax revenue is just total wrong.

Thank god my state but a clause in the state consutution where it's illegal for the state to take land and sell it to another private property owner.

[wonder cow]

It seems funny to me that the state would have the power to take property but couldn't put it back into circulation.

And they do this.

But my objection is when private property is taken from one citizen for the purpose of giving it to another. I think the "public use" clause can and should be construed to mean "public" in the same way as "public" park or "public" roads.

As to "just" compensation, I believe an argument can be made on behalf of those having their property stolen that the compensation is not "just" if it is based on current value. In other words, if I own a piece of a cow pasture and the county commission steals it from me and pays me say $20,000, then builds a major highway adjacent to it to where the same piece of dirt is now worth $150,000, that I should be entitled to the difference.

[Clausewitz]

But taking your property just to gain more tax revenue is just total wrong.

Yeah, but that was hardly the pretext. The point was, in Kelo, and in any case the Court would be likely to hear, that the transfer of property would reinvigorate an economy, which seems entirely justified.

But my objection is when private property is taken from one citizen for the purpose of giving it to another. I think the "public use" clause can and should be construed to mean "public" in the same way as "public" park or "public" roads.

Giving it to the private developer was hardly the primary purpose; I take them at their word when they said that they wanted to reinvigorate New London's economy. It wasn't just a transfer of wealth from A to B but an attempt to create new wealth. Sure, the city could have built projects there (and contracted it to the developer they sold it to anyway?) but that seems inefficient and ineffective, particularly given the straits this city was in.

The construction of "public" that you recommend has never been read into that clause of the constitution, nor should it, I think. Just as we have anti-trust law to break up what is, by a purist's definition of rights the property of an individual or group, land, too, should be treated that way - property should serve a purpose. Just compensation should be enough protection enough from malfeasance, and at any rate, this seems like a decent enough thing to leave to the states to decide rather than have it thrown at them.

As to "just" compensation, I believe an argument can be made on behalf of those having their property stolen that the compensation is not "just" if it is based on current value. In other words, if I own a piece of a cow pasture and the county commission steals it from me and pays me say $20,000, then builds a major highway adjacent to it to where the same piece of dirt is now worth $150,000, that I should be entitled to the difference.

Those considerations are usually involved in real estate valuation. There was no argument that, in the Kelo case, that the people were getting just compensation.

[wonder cow]

The construction of "public" that you recommend has never been read into that clause of the constitution

But I don't understand how it couldn't be read in the way I suggest, unless one believes that the writers of the amendment foresaw property being transferred in this way for possible economic revitalization.

An argument can also be made that using eminent domain in this way is a violation of the equal protection clause (but what isn't, right ). And the reason I suggest this, is that I doubt a wealthy neighborhood would ever be taken for this purpose, and taking property for "economic revitalization" will always result in poor to lower end middle-class properties being taken. So if equal protection is guaranteed, then eminent domain for "revitalization" disproportionately punishes one end of the economic spectrum. OK, it is a stretch. If I write a little longer, I can work in racism.

[Obviously5Believer]

I think another problem is that once the government sells the land, nobody has the right to tell the owner what do do with it. What if they decide that they'd rather build a house on that land? Or they manage their business horribly and go bankrupt within 5 years? After the transfer of ownership, there's nothing the government can do. Atleast if the government buys land and messes up badly the citizens can indirectly change the government's actions through voting and petition.

[Truthseeker]

Giving private property is to other private owners is sometimes important sometimes useful.

Like when large areas of farmland are owned and not used by the rich.
It is better for the whole society in those cases to distribute it to farmers who will use it, participating in the economy.

[Goranhammer]

It's immoral as all hell, abused to shit, and a tool of a large bureaucracy. And, as you stated, it is completely legal and constitutional.

You don't hear about it often because such cases are usually under lock and key. Sometimes it'll make headlines, such as what happened in Massachusetts last year, but more often than not it occurs with no ripple in the populace.

It's too subjective in my eyes because of the term "common good". It ignores economic utility with regards to the individual. I think it was originally written up to prevent people from owning land that does nothing but sit there and stagnate, mainly the type of thing encouraged in the 19th century under the Manifest Destiny. However, it's grown to an excuse for the government to dictate what they want and say it's for the good of the community, municipality, or the country.

[futuristic]

The thing is, slums have to be demolished, better sooner than later. Whatever is built in their place, being a road, a condo, or a shopping center, would benefit the society more than the slums do. And those who live there would arguably be better off living in newer homes/apartments (assuming the compensation is big enough to buy one). And if the gov’t manages not to waste tax money for this activity and instead tap into private capital it would be yet better. I said “arguably”, because someone may argue it’s “immoral” to apply force no matter what, but IMO that’s a lame argument.

[Obviously5Believer]

The thing is, slums have to be demolished, better sooner than later. Whatever is built in their place, being a road, a condo, or a shopping centre, would benefit the society more than the slums do.

The thing is, some governments are changing their definition of the word "blighted" to include the houses that they want to acquire. Like the case in Ohio or wherever that was recently on 60 minutes. The city government's definition of blighted essentialy made something like 90% of the homes in the city, including the mayor's and all seven city council members', blighted.

[futuristic]

The thing is, some governments are changing their definition of the word "blighted" to include the houses that they want to acquire. . . . . . . . . .

True. This problem is just one of many other inherent flaws of the gov’t, which is caused by monopolistic nature of the gov’t and the fact that income of officials doesn’t depend on how well they serve their voters. And the only solution is mentioned in my ideology left from this text, which I argued for here.

Still, the idea of forced transferring of land from one private owner to another shouldn’t be blindly dismissed. The issue is not that straightforward. Slums are really crying to be demolished and preferably not at taxpayer cost.

[Obviously5Believer]

Slums are really crying to be demolished and preferably not at taxpayer cost.

I agree with you there, but there's a difference between demolishing run down, low cost homes to put in a new apartment complex and demolishing relatively exspensive, large homes that have, in many cases, been with a particular family for decades. To tear them down just to put in a shopping mall is, in my opinion, not what the founding fathers would support.

The problem then arises on a fair determination of what constitutes a "slum" and whether or not a private owner will truly benifit the public with the land.

[futuristic]

I agree with you there, but there's a difference between demolishing run down, low cost homes to put in a new apartment complex and demolishing relatively exspensive, large homes that have, in many cases, been with a particular family for decades.

That’s fine as long as the owners are compensated with yet better homes plus more wealth is created as a result of the business activity.

To tear them down just to put in a shopping mall is, in my opinion, not what the founding fathers would support.

Frankly, I don’t care “what the founding fathers would support”. Everything has changed since they lived so this argument has little relevancy to today’s world. Still, I do recognize that this would be a violation of freedoms, which is OK with me.

The problem then arises on a fair determination of what constitutes a "slum"

Actually, it’s pretty unlikely someone would want to demolish new buildings because it would cost them too much.

and whether or not a private owner will truly benifit the public with the land.

Any business activity actually benefits the public. The construction of the facility and the construction/purchase of homes for people whose homes are to be destroyed -- all that benefits the economy. Perhaps, if no significant benefit to the public is expected it would be a good reason to demand a higher compensation from the developer.

[theonly1whoknows]

I think another problem is that once the government sells the land, nobody has the right to tell the owner what do do with it.

I believe that before the gov. takes over private land they must have a relavent use in mind. If a company says they need land for a large manufacturing plant and this benifits the public good by bringing jobs and revenue, then the company better go through with it. The land isn't just taken over with no use in mind hopefully they don't have to tell the owner what to do with it.

Interesting case however, I think it was Ford motor company that recieved land under eminent domain with promises to bring something like 30,000 new jobs and only brought about 12,000 I think. Thats kinda of a lie. I don't know if they would have been given the land if only 12,000 had been promised.

-okay Clausewitz, what case is it? And the case number? And the parties involved?

Oh and I think that if you wanted, eminate domain could police itself. If the company/condos/whatever isn't benifiting the public, commandere that shit and build an airport.

[Clausewitz]

I forgot this thread.

But I don't understand how it couldn't be read in the way I suggest, unless one believes that the writers of the amendment foresaw property being transferred in this way for possible economic revitalization.

An argument can also be made that using eminent domain in this way is a violation of the equal protection clause (but what isn't, right). And the reason I suggest this, is that I doubt a wealthy neighborhood would ever be taken for this purpose, and taking property for "economic revitalization" will always result in poor to lower end middle-class properties being taken. So if equal protection is guaranteed, then eminent domain for "revitalization" disproportionately punishes one end of the economic spectrum. OK, it is a stretch. If I write a little longer, I can work in racism.

The original authors of the amendment never saw it applied to the states, for starters. That's only been the case since the late 1800s I think. That's part of the reason why the jurisprudence for this clause is so weird.

I don't think the equal protection clause is meant to be read that way. The state is allowed to discriminate wherever there's a genuine distinction; I think rich vs. poor is one of those things where the court says that it'll give discretion to the states. An economic interest, in almost any other area of the law, is enough.

The racism thing is something where the court reserves the right to intervene. But the court said, famously, in a case in the 1930s that the state is actually allowed to be racist in favor of "insular and discrete minorities," on the grounds that that was the original intent of the amendment after all. And, so, the state has special dispensation to take land from rich whites to give it to poor blacks. This is how things like affirmative action are passable.

I don't personally (in my opinion as a wanna-be lawyer) like the court's holding on equal protection, but this is what it is.

I think another problem is that once the government sells the land, nobody has the right to tell the owner what do do with it. What if they decide that they'd rather build a house on that land? Or they manage their business horribly and go bankrupt within 5 years? After the transfer of ownership, there's nothing the government can do. Atleast if the government buys land and messes up badly the citizens can indirectly change the government's actions through voting and petition.

I think the government would usually contract it to say that "You will do X and Y with this land. In the event of your bankruptcy, the land devolves to us again."

It's too subjective in my eyes because of the term "common good". It ignores economic utility with regards to the individual. I think it was originally written up to prevent people from owning land that does nothing but sit there and stagnate, mainly the type of thing encouraged in the 19th century under the Manifest Destiny. However, it's grown to an excuse for the government to dictate what they want and say it's for the good of the community, municipality, or the country.

It seems to me that this ought to be something left to the states, for starters. Secondly, it strikes me that there's nothing different between the two varieties of cases; someone failing to use property efficiently in the first place, to someone failing to use it in the second, except that we're taking it from rich white folks in the second and from poor indians in the first.

-okay Clausewitz, what case is it? And the case number? And the parties involved? Wink

I have no idea. I'm working from what I remember from a class I took a year and a half ago.

[Goranhammer]

someone failing to use property efficiently in the first place, to someone failing to use it in the second, except that we're taking it from rich white folks in the second and from poor indians in the first.

Well, my argument is that efficient use of land is directly linked to ownership and is an individual affair. If land is just kept for the sake of keeping, you can't really argue individual efficiency. However, if I obtained land and used it for, say, building a basketball and tennis court for me and my friends to use when they're over, then you can argue efficiency with regards to perspective. Sure, it may be MUCH more efficient for society by tearing my courts down and putting up a Taco Bell, but it wouldn't be for me. And, as owner, I have full right to determine what I use in the way I use it. The same can't really be said for someone with a few acres of nothing at all.