Government Can Take Your Home if Someone Important Wants It

Of course if you would prefer the Supreme Court to be subservient to the President and/or the Congress then you obviously have no time for democracy. If so, come right and say that you don't like democracy.

Who cares if I used the wrong word? I never claimed perfection. I subsequently explained what I meant. The power to seize public property for the common good is indeed created by the Fifth Amendment. In the act of stating that compensation must be just, the Fifth Amendment tacitly recognizes that a pre-existing right exists. If the Fifth Amendment did not make this statement, the Constitution would not be regarded as giving government such a right. Any legislature attempting to protect people by passing a law limiting such a right would undoubtedly meet with lawsuits arguing that the legislatures possessed no power to curtail rights granted in the Constitution. Such laws would be declared unconstitutional.

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.

So long as your state or local government takes private property for public use and pays just compensation, there is no violation of the Constitution.

First of all, it is unlikely that a fair price would often not be granted, since a man with no power to bargain or say no is unlikely to get the price he would if he had such power.

Secondly, the authors of the Constitution are unlikely to have intended that a person's home could be seized with as low a requirement as merely that it be for public use. Surely, they intended this to be done only in extraordinary cases, not just because some developer wanted to turn someone's home into a mall. That would be tyranny.

Thirdly, many would say that all people have a natural right to own a home which no one has the power to seize. I do not object to an exception being granted for emergencies, but I consider it to be immoral to allow a person's home to be seized for casual public or private motives.

And finally, this decision will surely result in numerous cases of the rich contacting their political allies to seize some poor soul's home because they want to make some money from it.

I have observed that your usual practice is to attempt to condescend to and bully people with your law degree, and that the primary merit of your opinions is that you are willing to post them again and again until your opponent does not recognize their validity, but just prefers not to speak with you further.

goodfielder wrote:

Of course if you would prefer the Supreme Court to be subservient to the President and/or the Congress then you obviously have no time for democracy. If so, come right and say that you don't like democracy.

You bet I, and every freedom loving person on the planet, would never support "democracy".

Let me point out that the American system, unlike your system, is not a democracy___ it is a constitutionally limited Republican Form of Government, guaranteed by Art. IV , Sec. 4, of the United States Constitution.

Madison, who, in talking about "democracies" points out in Federalist Paper No. 10. "...have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths..."; and, during the Convention which framed our Constitution, Elbridge Gerry and Roger Sherman, delegates from Massachusetts and Connecticut, urged the Convention to create a system which would eliminate "the evils we experience," saying that those "evils . . .flow from the excess of democracy..."; and, then there was John Adams, a principle force in the American Revolutionary period who pointed out "democracy will envy all, contend with all, endeavor to pull down all; and when by chance it happens to get the upper hand for a short time, it will be revengeful, bloody, and cruel..."
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Democracy, can best be described as mob-rule government, two wolves and a sheep voting for what shall be for dinner, very different from America`s Constitutional limited Republican Form of Government...our constitution being designed to protect the individual and rights associated with property ownership, democracy yielding to mob-rule feeling and group theft!


JWK
ACRS


"As nightfall does not come at once, neither does oppression. In both instances there is a twilight where everything remains seemingly unchanged. And it is in such twilight that we all must be aware of change in the air - however slight - lest we become unwitting victims of darkness.___ "[/i]Supreme Court Justice William Douglas

I think the point was that while the power of eminent domain is inherent because of sovereignty then that sovereign body can limit it should it choose.

I am making an assumption here from reading Debra_Law's post I'm pretty sure the point was to get active and persuade your sovereign body (state) to limit its ability to do so by passing state laws.

The US Supreme Court has - I think - expanded the concept of eminent domain but that concept is an old one. But the Court has only given potential. No state has to actually go out and do it, it's not compulsory. Therefore citizens need to get active and get their state to pass legislation to limit its use of eminent domain.

Ah I see the problem. You're using the archaic meaning. That's the confusion. The Founding Fathers were referring to direct democracy, they were worried about it because the minority would suffer under direct democracy so they built a republican system to protect the minority to avoid the tyranny of the majority. But in modern terminology your country, like mine, is a democracy, but an indirect democracy.

The historical truth is, the 14th Amendment was adopted with the legislative intent to prohibit state adopted legislation based upon race color or previous condition of slavery, and, to preclude the power of the state to be used in such a fashion as to impose unequal burdens or treatment based upon race color or previous condition of slavery.

The legislative intent of the 14th Amendment was never intended to apply to state laws which make distinctions based upon criterion other than race, color or previous condition of slavery. . . .

The notion that the constitution means what the Supreme Court says it means is far from being “provocative”. It’s just plain stupid, at least to a freedom loving people who intended to bind the hands of government by the chains of a written constitution! The truth is, the Constitution means what its framers and ratifiers intended it to mean!

As a matter of fact, the most fundamental principle regarding constitutional law is to carry out the intent of the constitution as contemplated by those who framed it and the people who ratified it. To do otherwise is to view the constitution as nothing more than a list of suggestions subject to the whims and fancies of those in political power.

A research of the House and Senate debates which framed both the 1st Civil Rights Act and the 14th Amendment, which was intended to incorporate the objectives of the Civil Rights Act into the Constitution --- thereby making the first Civil Rights Act constitutional --- does not support the claim that those who framed and ratified it intended it to apply in a very broad manner so as to prohibit state legislation making distinctions beyond race color or previous condition of slavery!
. . . .

The truth is, members of our Supreme Court are subjugating our constitutional system and supplanting their personal whims and fancies as being within the legislative intent of our Constitution as contemplated by those who framed it and the people who adopted it--- such action being a blatant rebellion against our Constitution system and meeting the definition of tyranny!

Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833)

Mr. Chief Justice MARSHALL delivered the opinion of the court.

The judgment brought up by this writ of error having been rendered by the court of a State, this tribunal can exercise no jurisdiction over it unless it be shown to come within the provisions of the 25th section of the Judiciary Act. The plaintiff in error contends that it comes within that clause in the Fifth Amendment to the Constitution which inhibits the taking of private property for public use without just compensation. He insists that this amendment, being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a state, as well as that of the United States. If this proposition be untrue, the court can take no jurisdiction of the cause.

The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.

If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. In their several Constitutions, they have imposed such restrictions on their respective [p*248] governments, as their own wisdom suggested, such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.

The counsel for the plaintiff in error insists that the Constitution was intended to secure the people of the several States against the undue exercise of power by their respective State governments, as well as against that which might be attempted by their General Government. It support of this argument he relies on the inhibitions contained in the tenth section of the first article. We think that section affords a strong, if not a conclusive, argument in support of the opinion already indicated by the court. The preceding section contains restrictions which are obviously intended for the exclusive purpose of restraining the exercise of power by the departments of the General Government. Some of them use language applicable only to Congress, others are expressed in general terms. The third clause, for example, declares, that "no bill of attainder or ex post facto law shall be passed." No language can be more general, yet the demonstration is complete that it applies solely to the Government of the United States. In addition to the general arguments furnished by the instrument itself, some of which have been already suggested, the succeeding section, the avowed purpose of which is to restrain State legislation, contains in terms the very prohibition. It declares, that "no State shall pass any bill of attainder or ex post facto law." This provision, then, of the ninth section, however comprehensive its language, contains no restriction on State legislation.

The ninth section having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the General Government, the tenth proceeds to enumerate those which were to operate on the State legislatures. These restrictions are brought together in the same section, and are by express words applied to the States. "No State shall enter into any treaty," &c. Perceiving, that in a constitution framed by the people of the United States, for the government of all, no limitation of the action of government on [p*249] the people would apply to the State government, unless expressed in terms, the restrictions contained in the tenth section are in direct words so applied to the States.

It is worthy of remark, too, that these inhibitions generally restrain State legislation on subjects intrusted to the General Government, or in which the people of all the States feel an interest. A State is forbidden to enter into any treaty, alliance or confederation. If these compacts are with foreign nations, they interfere with the treaty-making power, which is conferred entirely on the General Government; if with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the Constitution. To grant letters of marque and reprisal, would lead directly to war, the power of declaring which is expressly given to Congress. To coin money is also the exercise of a power conferred on Congress. It would be tedious to recapitulate the several limitations on the powers of the States which are contained in this section. They will be found generally to restrain State legislation on subjects intrusted to the government of the Union, in which the citizens of all the States are interested. In these alone were the whole people concerned. The question of their application to States is not left to construction. It is averred in positive words.

If the original Constitution, in the ninth and tenth sections of the first article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the General Government and on those of the State; if, in every inhibition intended to act on State power, words are employed which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course in framing the amendments before that departure can be assumed. We search in vain for that reason.

Had the people of the several States, or any of them, required changes in their Constitutions, had they required additional safeguards to liberty from the apprehended encroachments of their particular governments, the remedy was in their own hands, and could have been applied by themselves. A [p*250] convention could have been assembled by the discontented State, and the required improvements could have been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from two-thirds of Congress and the assent of three-fourths of their sister States could never have occurred to any human being as a mode of doing that which might be effected by the State itself. Had the framers of these amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.

But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.

We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the [p*251] Government of the United States, and is not applicable to the legislation of the States. We are therefore of opinion that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that State, and the Constitution of the United States. This court, therefore, has no jurisdiction of the cause, and it is dismissed.

This cause came on to be heard on the transcript of the record from the Court of Appeals for the Western Shore of the State of Maryland, and was argued by counsel. On consideration whereof, it is the opinion of this Court that there is no repugnancy between the several acts of the General Assembly of Maryland given in evidence by the defendants at the trial of this cause in the court of that State and the Constitution of the United States; whereupon it is ordered and adjudged by this court that this writ of error be, and the same is hereby, dismissed for the want of jurisdiction.

If this turns into one of those "bash the Supreme Court" threads it won't be much use. Best to look at the judgement rather than bang on about who delivered it.

A similar thing happened in Australia in 1992 when our High Court (the final appellate court - like the US Supreme Court) handed down a decision in a land rights case. The media went ballistic. According to them everyone's home was subject to native title. Not so. But it didn't stop people hurling all sorts of abuse at the High Court.

Quote:

The servant has become the master over those who created a servant

If you know anything about democratic theory and the doctrine of the separation of powers you would know how ridiculous that statement is. No-one is master of the Supreme Court just as no-one is master of the President or Congress. All of them have their role in protecting democracy. It's like a three-legged stool, saw one in half and the whole idea of democracy falls down. Of course if you would prefer the Supreme Court to be subservient to the President and/or the Congress then you obviously have no time for democracy. If so, come right and say that you don't like democracy.

Brandon9000 wrote:

Secondly, the authors of the Constitution are unlikely to have intended that a person's home could be seized with as low a requirement as merely that it be for public use.

Second: The Constitution provides that private property may not be taken except for "public use." The drafters and ratifiers of the Constitution intended that private property could be taken for "public use" providing the government pays just compensation to the owner. Therefore, your second point is without merit.

jwk:

I don't understand your beef.

The Fifth Amendment's Taking Clause in the United States Constitution is a limitation on Congress's power to take private property for public use without just compensation.

You know, despite your education in this field, you're not very bright. I meant that the Framers are unlikely to have intended that people's homes could be seized with no more justification than that it be for public use. I believe they intended seizure of someone's home to occur for emergency public use, not just any public use.

There is no point in me dissecting your windy response and proving you wrong point by point, because you will continue forever to come back with largely incorrect but very lengthy responses. I am fully aware that you have a perfect right to post here, but to be frank, and stating it as politely as I know how, I wish you would get out of my thread.

Brandon,

For some reason...lead to a productive discussion.


JWK

A constitution that limits the authority of the government and protects many civil rights
Universal suffrage, granting all citizens the right to vote regardless of race, gender or property ownership (See also elective rights)
Freedom of expression, including speech, assembly and protest
Freedom of the press and access to alternative information sources
Freedom of association
Equality before the law and due process under the rule of law
The right to private property and privacy
Educated citizens informed of their rights and civic responsibilities
A broadly and deeply entrenched civil society
An independent judiciary
A system of checks and balances between branches of government

Unfortunately, there is not sufficient comprehension among Americans of the meaning of a republic, and so we sometimes hear the erroneous pronouncement that "we are a republic and not a democracy." The truth is that we are both a republic and a democracy.

We don't like well connected rich people being able to seize the property of poor, powerless people. It seems to me that the government has the physical power but not the moral right to take someone's home except in an emergency. That's what what we mean when we say that an individual owns something

There must now be enough activists to begin action to move their state legislators to enact laws to protect private property. Who will begin this move?

From Brandon

Quote:

We don't like well connected rich people being able to seize the property of poor, powerless people. It seems to me that the government has the physical power but not the moral right to take someone's home except in an emergency. That's what what we mean when we say that an individual owns something

...Whether or not a government has the moral right is neither here nor there....

There must now be enough activists to begin action to move their state legislators to enact laws to protect private property. Who will begin this move?