Tagged: fifth

Ohio eminent domain task force misses the point

5th Amendment textThe Ohio task force on eminent domain has released its preliminary report, and it’s missed the most important point of the exercise. I’m not interested in a fairer procedure for the government to use as it takes my home. I’m not interested in a clearer definition of “blight” that spells out exactly when the government can take my home. You see, I don’t want the government to take my home at all. Why is that so hard to understand?
A local or state government can exercise its eminent domain powers to take private property from its owner, if the government does so for a “public use” and pays “just compensation” (see the Fifth Amendment, at right). Until very recently, the term “public use” meant what you’d expect: building a school, putting in a highway, laying railroad tracks, and other projects that the public has access to.
We used to think of private building projects as a “private use” of property, since the public doesn’t have guaranteed access. But no more. Thanks to the U.S. Supreme Court’s ruling in Kelo v. New London last summer, the definition of “public use” has expanded to include the government seizing your land and giving it to another private owner for “economic development” (which means the new owner’s project yields higher property taxes than you do, or creates jobs, or some similar rationalization).
Liberals and conservatives alike blew a collective gasket over the ruling, and angry voters have already pressured several state legislatures into passing laws prohibiting these takings through eminent domain.

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More reaction to Kelo

Don’t miss Michelle Malkin’s survey of the Kelo blogstorm.
Glenn Reynolds rounds up some great commentary on property rights, all posted since yesterday’s decision in the Kelo case. I found Zach Wendling’s idea scary but fascinating: he suggests using environmental laws and regulations to protect your land from developers.
George Will distills the gigantic problem the Supreme Court dumped on us yesterday:

During oral arguments in February, Justice Antonin Scalia distilled the essence of New London’s brazen claim: “You can take from A and give to B if B pays more taxes?” On Thursday the court said that the modifier “public” in the phrase “public use” does not modify government power at all.

Liberalism triumphed Thursday. Government became radically unlimited in seizing the very kinds of private property that should guarantee individuals a sphere of autonomy against government.
Conservatives should be reminded to be careful what they wish for. Their often-reflexive rhetoric praises “judicial restraint” and deference to — it sometimes seems — almost unleashable powers of the elected branches of governments. However, in the debate about the proper role of the judiciary in American democracy, conservatives who dogmatically preach a populist creed of deference to majoritarianism will thereby abandon, or at least radically restrict, the judiciary’s indispensable role in limiting government.

If you’re still looking for more, one nice way to track who’s saying what about Kelo is N.Z. Bear’s topic page on the case. Plus, there’s Google News and Technorati.

UPDATE: This post about Zimbabwe isn’t actually a reaction to the Kelo ruling, but it does demonstrate what happens when a nation guts the concept of private property rights.
UPDATE 2: Ever wondered what you can look forward to after this outrageous ruling? Wonder no more.
UPDATE 3: Pros and Cons predicts many communities will see a rise in homelessness, a spike in government subsidized housing residents, and a drop in the number of low-income workers available to employers.
Meanwhile, Wizbang’s Jay Tea tiptoes through the Bill of Rights in a property rights retrospective.
UPDATE 4: Lawrence White at Division of Labour predicts more empty big box shopping centers and strip malls, thanks to Kelo‘s anti-competitive side effects.
I think we might be able to contract around the problem.
UPDATE 5: Eric’s Grumbles Before The Grave has a good roundup, including a Canadian’s perspective.

Contracting around Kelo

Here we are in Day Two of life without property rights, thanks to the U.S. Supreme Court’s ruling yesterday in Kelo v. New London. Five unelected lawyers have decided that contrary to any rational reading of the Takings Clause of the Fifth Amendment, a local government can use its eminent domain power to take your land, pay you a pittance “just compensation”, then turn around and sell the land to someone who makes fat campaign donations to another private party that the government thinks will engage in a nice “public use” of your land … in other words, in some way that’s hyped as creating jobs, generating more property tax revenue, or helping economic development.
Since we can’t rely on the plain language of the Constitution anymore to keep the government’s grubby paws away from our property, what can we do? As a temporary measure, maybe we can contract around the Kelo problem.
Let’s say that you own some attractive real estate that your local government wants to take from you through eminent domain. To foil their plans you enter into a contract with the state government, where in exchange for a fee, the state automatically takes title to your property if your municipal or county government ever attempts to condemn it, and you get to live on the land. Perhaps it could be set up as a trust with the state as trustee.
Anyway, since a local government doesn’t have the authority to condemn state property, they lose all incentive to condemn your property once you tell them about your new arrangement. If the condemnation would be for a true public use (as we used to understand it) like building a highway or a bridge, you can always put a clause in the contract that exempts such true public uses from triggering the passage of title to the state.
Now since the local government gains nothing by using eminent domain for shifty purposes, they won’t condemn your property … and the state never takes title. But the state does get a valuable interest in your land, and it gets political brownie points by being perceived as “defending the little guy” from corrupt local politicians and fatcat developers. To top it all off, you get a fee from the state in exchange for its interest in your land.
This strikes me as a quick way to inoculate property against greedy local governments. What do you think?

UPDATE: Will Collier rounds up other possible solutions.
UPDATE 2: This post has merged at high speed into today’s Beltway Traffic Jam.

Say goodbye to property rights

The Kelo Five

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, U.S. Constitution
[Emphasis added]

If you read the Fifth Amendment, you’d think that the government is prohibited from taking private property for private use, wouldn’t you? But according to five unelected lawyers, you’d be wrong.
The U.S. Supreme Court just handed down a ruling in the case of Kelo v. New London, in which it declared that your city government can take your house, bulldoze it, and sell the lot to a developer … so that the government can charge more in property taxes on the new commercial property that used to be your home.
Here’s the travesty opinion; read it and weep:

More on this later. For now, check out Michelle Malkin (and don’t miss the boiling anger across the blogosphere). Reactions excerpted here, too.

UPDATE: Justice Thomas’ dissent does a great job of explaining that words mean things … especially in our Constitution:

The most natural reading of the [Takings] Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever. At the time of the founding, dictionaries primarily defined the noun “use” as “[t]he act of employing any thing to any purpose.” The term “use,” moreover, “is from the Latin utor, which means ‘to use, make use of, avail one’s self of, employ, apply, enjoy, etc.” When the government takes property and gives it to a private individual, and the public has no right to use the property, it strains language to say that the public is “employing” the property, regardless of the incidental benefits that might accrue to the public from the private use. The term “public use,” then, means that either the government or its citizens as a whole must actually “employ” the taken property.

Justice Thomas, in dissent

I don’t see anything in New London’s confiscation of Suzette Kelo’s home that involves a public use. The city’s going to sell the land to a private developer. If we lived anywhere but in Supreme Court World, the violation of Kelo’s constitutional rights would be obvious.

UPDATE 2: Professor Bainbridge points out the injustice in succinct terms by recalling a post he made in February:

… the requirement to pay fair market value is a grossly inadequate safeguard on government power for two reasons in Kelo. First, it fails to take into account the subjective valuations placed on the property by people whose families have lived on the land, in at least one case, for a 100 years. In other words, if the Supreme Court rules for the city, the government will be able to seize land at a price considerably below the reservation price of the owners. Second, unlike the prototypical eminent domain case, in which the land is seized to build, say, a school or road, in this case the city is using eminent domain to seize property that will then be turned over to a private developer. If this new development increases the value of the property, all of that value will be captured by the new owner, rather than the forced sellers. As a result, the city will have made itself richer (through higher taxes), and the developer richer, while leaving the forced sellers poorer in both subjective and objective senses.

Will Collier at Vodkapundit sees what’s coming:

This is a dreadful decision. If politicians have the right to take your private property and give it to somebody else just because the other guy claims that he can generate more taxes from it, then property rights have ceased to exist in the US.
The localities are still required to pay “a just price” when one of these takings occurs, but the price even a willing seller would be able to get from his property just took a huge hit. All a developer has to do now is make a lowball offer and threaten to involve a bought-and-paid-for politician to take the property away if the owner doesn’t acquiesce.

You know it’ll happen, and soon.

UPDATE 3: RightNumberOne knows that it’s all about following the money:

A land rush is about to begin. Polticians bought and paid for with campaign donation bribes are about to be unleashed on the United States like a plague of rats. You can either become a donor, or your land will be forced from you and turned over to people who are more politically astute.

It’ll start this very week, I have no doubt. Geez, must property owners now form a 527 group to funnel protection money to politicians? Why do we even have a Constitution if five dipdunks in black robes rule over us unopposed?

UPDATE 4: Glenn Reynolds thinks this decision’s going to cause a public opinion tsunami. I agree. More from Glenn here and here.

UPDATE 5: Jeff Goldstein nails it:

Lovely how the majority justices tried to cover this decidedly anti-Lockean decision with a rhetorical appeal to federalism (“local officials, not federal judges, know best…”). But just because the decision allows a local government (rather than the federal government, with its cynical appeal to a malleable Commerce Clause) to assert what appears to me to be an extra-Constitutional claim on a private citizens� property rights doesn�t make it any more kosher�and today�s decision, in its expansion of what can be shoehorned into the category of �public use,� gives carte blanche for municipalities to remake the geography in any way they see fit, so long as they can make the argument that they are doing so for the common weal (which in many cases is really just an excuse for gentrification�and legalizes the taking of private property from one owner and transferring it, by municipal will, to another government approved private property owner; it�s a plutocrat�s wet dream).

This is nannystatism at its most cynical. And if the Bush administration were to use this ruling to push for the kinds of conservative justices who strongly object to what amounts to outright thievery and municipal bullying, I think they�d have a real winner on their hands.
If developers wish to purchase potentially profitable land for civic development, let them strike a bargain with the land�s rightful owner; allowing them to achieve their aims by lobbying unctious and pliable elected officials instead gives those elected officials far too much power, and subverts the natural workings of a free market system.

Personally, I�m for starting a cyber support group for the New Londoners who are planning a show of civil disobedience when the bulldozers tractor up to the doors of their homes. Anybody else?

The more I think about this, the angrier I get. Meanwhile, Fox News and CNN and MSNBC focus on the missing girl in Aruba, proving yet again that the mainstream media is painfully out-of-touch. By contrast, look at what the blogosphere’s talking about.

An e-mail from Fallujah

Lt Col Dave Bellon sent another e-mail to his folks from Fallujah, dated November 19th. It relates some of what he saw in the battle there, and includes some photographs.

Immediately following 3/5’s attack on the apartment buildings, 3/1 took the train station on the north end of the city. While the engineers blew a breach through the train trestle, the Cavalry soldiers poured through with their tanks and Bradley’s and chewed an opening in the enemy defense. 3/1 followed them through until they reached a phase line deep into the northern half of the city. The Marine infantry along with a few tanks then turned to the right and attacked the heart of the enemy defense. The fighting was tough as the enemy had the area dialed in with mortars. 3/5 then attacked into the northwest corner of the city. This fight continued as both Marine rifle battalions clawed their way into the city on different axis.
There is an image burned into my brain that I hope I never forget. We came up behind 3/5 one day as the lead squads were working down the Byzantine streets of the Jolan area. An assault team of two Marines ran out from behind cover and put a rocket into a wall of an enemy strongpoint. Before the smoke cleared the squad behind them was up and moving through the hole and clearing the house. Just down the block another squad was doing the same thing. The house was cleared quickly and the Marines were running down the street to the next contact. Even in the midst of that mayhem, it was an awesome site.
The fighting has been incredibly close inside the city. The enemy is willing to die and is literally waiting until they see the whites of the eyes of the Marines before they open up. Just two days ago, as a firefight raged in close quarters, one of the interpreters yelled for the enemy in the house to surrender. The enemy yelled back that it was better to die and go to heaven than to surrender to infidels. This exchange is a graphic window into the world that the Marines and Soldiers have been fighting in these last 10 days.

Read the whole thing at The Green Side.
As always, you can get your Fallujah data dump at The Adventures of Chester, Winds of Change, and here.

Snapshot: Battle of Fallujah overview

Carnivorous Conservative outdoes himself with this original graphic combining an open-source satellite photo with info from news reports. It’s a very informative snapshot of the situation as of 8:30 PM, EST.
And people wonder why I’m a blog junkie?
Hat tip: Chester (who’s liveblogging the battle as I suspected he would).

Liveblogging the Battle of Fallujah

I’m just guessing here, but don’t be surprised if Chester and Carnivorous Conservative team up again tonight to cover the latest (and hopefully last) developments in the Battle of Fallujah. They started at about this time last night, so stay tuned …

Battle of Fallujah round-up

Our troops are advancing faster than we’d planned, killing more of the enemy than we’d expected, losing fewer of ours than we’d feared, and might be wrapping up Fallujah more swiftly than we’d dreamed.
To sift through what bits of information manage to leak out of Fallujah, read The Command Post.
If liveblogging with on-the-fly analysis is your bag, then The Adventures of Chester is your one-stop shop.
The Belmont Club pulls some loose threads together to make educated guesses about the unfolding battle.
Want maps and satellite photos? Two words: Carnivorous Conservative.
For your inspiration, Blackfive has video of Marines singing in Fallujah.
And please … say a prayer today, OK? Froggy Ruminations has an appropriate one.