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July 11, 2005
Eminent domain continued
Stephen Macklin is up to revision 10.1 with the Constitutional Amendment to limit the government power of eminent domain. Here it is.
No government or agency of government within these United States shall have the authority to take property from a private citizen, corporation, or organization for other than a public use without just compensation.
Public use shall be understood to be property the government owns, or the public has a legal right to use. Public use of such property shall be maintained for a period of not less than 50 years.
Just compensation shall be higher of the twice average of either the price paid for similar property in the preceding six months or the average of the previous 10 recorded similar property transactions. Compensation paid shall be exempt from taxation in any form by any government within these United States.
I think it's a big improvement over earlier versions, because for one thing, it omits the clause about a "right to ownership". But I'm not sure the language specifying that "the public has a legal right to use" would be restrictive enough. Nor do I think the government should necessarily be required to own property it uses. In contrast, the legislation proposed by Senator John Cornyn contains the following regarding public use.
(b) PUBLIC USE.--In this Act the term "public use" shall not be construed to include economic development.
I like that idea, but I'm not so sure this will sufficiently limit intrusions of the government either. I ponder the possibilities of what would drop off the list of things considered to be in the realm of "economic development". At any rate, I think I would prefer to define public use this way, keeping in the "economic development" part in hopes that it will do some good.
The term "public use" shall mean (a) direct use by the general public, (b) or direct use by a branch of local, state, or federal government in the conduct of its business, or (c) direct use by an agent of local, state, or federal government in the conduct of its business. The term "public use" shall not be construed to include economic development.
Since Stephen invited both Steve Couch and I to offer suggestions, I've added my definition of "public use" along with that of Senator Cornyn to Stephen's revision 10.1 and come up with this.
No government body within these United States shall have the authority to take property from one private citizen, corporation, or organization for any reason other than for public use.
The term "public use" shall mean (a) direct use by the general public, (b) or direct use by a branch of local, state, or federal government in the conduct of its business, or (c) direct use by an agent of local, state, or federal government in the conduct of its business. The term "public use" shall not be construed to include economic development. Public use of such property shall be maintained for a period of not less than 50 years.
Just Compensation shall be higher of the twice average of either the price paid for similar property in the preceding six months or the average of the previous 10 recorded similar property transactions. Compensation paid shall be exempt from taxation in any form by any government within these United States.
At this point I await with interested the suggestions promised by Steve Couch. Of course, suggestions from any reader who would like to weigh in are welcome as well.
Posted by Tom Bowler at 05:51 PM | Permalink
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» The Eminent Domain Amendment Project from BlueStateRed
I finally got a chance to take a crack at this thing. Here goes nothing.
I decided to make my proposed edits on the original text: [Read More]
Tracked on Jul 12, 2005 10:26:53 PM
» Open Source Amendment Project - Revision 11 from Hold The Mayo
There was a pretty strong consensus behind eliminating the declarative statement that opened the previous revisions. Most cited the problems caused by the well regulated militia clause of the second amendment.
[Read More]Tracked on Jul 14, 2005 8:02:58 PM
Comments
Let me put to you the same concern that you and Steve Couch put to me. Where in this language is there room for a mixed use situation such as an airport? Would airport management be considered the agent of government and part of the conduct of their business is leasing space to Stabucks and McDonalds?
How would this differ from a town's development agency performing its duty to foster economic growth by bringing in new businesses?
I also think directly banning "economic development" from eminent domain puts in jeopardy things like airports and train stations since economic development is often one of the main reasons such projects are undertaken. And how do you reconcile something like a convention center run by an agency of government the sole purpose of which is an economic development boondoggle?
I have found through the process of developing this project that it is much harder than I anticipated. The balance between too restrictive and too vague is difficult. The number of variables to balance before you even begin to factor in the vagaries of the Supreme Court are limitless.
That is why I am tending toward general yet restrictive language. The definition in the current revision came from this sentence referring to the takings clause of the Fifth Amendment in the Thomas dissent to Kelo. "The most natural reading of the 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."
Posted by: Stephen Macklin | Jul 11, 2005 6:32:59 PM
I felt that by saying "direct use by the general public" we would be including mixed uses. Airport management provides a service directly to the general public. So does the Starbucks at the airport. This would exclude things like apartments or offices that would not necessarily be used by the general public. So a shopping mall would qualify under that condition. Prohibiting eminent domain for purposes of economic development would exclude the shopping mall, which in my view ought to be built without forcibly booting people out of their homes, but I see your point on the convention center.
Perhaps the concern for excluding mixed use could be addressed by saying that the "primary use" must be public. That would allow for supporting activities that are not for the general public. Then again, I suppose I could be persuaded to defer to Justice Thomas. He might have a bit more insight into this than I.
It is definitely a difficult task, but worth the effort in my view. I'm with you on the notion that the goal is to get some protection of property rights out of this, whether by amendment or legislation. My preference of course is by amendment. My libertarian tendencies push me towards wording that's more restrictive of government power. In this day and age it's absurd to think there aren't other ways that wouldn't require the use of eminent domain to accomplish what New London hoped to do.
Posted by: Tom Bowler | Jul 11, 2005 10:35:47 PM
Maybe it'd be easier if we focused on Kelo instead of some grand all-purpose definition of "public use". Why not describe what happened in Kelo -- "Government taking of privately owned property under eminent domain laws for the purpose of selling to another private interest for any reason including economic development" -- and just add "does not qualify as a public use of that land"? It leaves all of the accepted dual-use traditions in place, but bans Kelo-like land grabs, which everyone knows this is all about anyway.
Posted by: Tuning Spork | Jul 13, 2005 10:22:18 PM
