Defending the 5th Amendment
Dean
My lovely wife has an eminent domain challenge for me. In reading the story she links, I am still bemused by conservative attitudes on this issue.
First off, let us get something out of the way: the right of the state to seize propery has been a part of the United States Constitution for well over 200 years. It is part of the Bill of Rights, a document I happen to treasure. Article V of the Bill of Rights clearly states:
"No person shall....be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
While I can vaguely understand liberal ire on this, I must admit to being rather stunned at conservatives. You guys are supposed to be the hard-nosed, tough-minded law-and-order types who want the government to follow what the Constitution plainly says and not just what we want it to say. But now when it hits on an area where you're sensitive--a limitation on the right to property--suddenly it's, "I don't want the Constitution to say this so we'll stamp our feet and yell until mommy says it's not there!"
But it is there.
Eminent domain is an ancient right of government. It's been part of the United States since the days of George Washington, and it's been a recognized power of government for thousands of years before that. Even the Magna Carta recognizes it, stating, "No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement of his peers, or by the law of the land."
That's going back to 1215 fer cryin' out loud, in a document that is universally hailed as forming the bedrock of our most fundamental concept of rights here in the West.
Someone once tried to tell me that the state using due process and fair compensation to take property is communism. If so, not only were America's founding fathers communists, but apparently, so was King John!
It is settled law and settled principle that government can take land so long as just compensation and due process are granted. So now we have the specific case that my lovely wife dares me to defend. Unfortunately, this is difficult because the links she provides are cluttered with distractions. She links to this story on Michelle Malkin's site, and Michelle's article immediately shows us a graphic saying "hands off my home." But if you read the actual story, nobody's home is being touched.
Furthermore, when I read the full story in the Newark Star Ledger, I was shocked at what a hack reporting job it was. These boobs should be working for the Los Angeles Times they're so incompetent!
The story prejudices the reader by telling us that that land developers who want to buy the land in question attended a fundraiser for the local Democratic Party chairman, a man named Cryan, helping him raise about $70,000 in campaign contributions. Then the story leaps to a completely different subject, and says the local city council voted unanimously to exercise eminent domain to force a land speculator to sell some abandoned industrial real estate he had bought up.
You have to read the story carefully before you find out that Cryan is not even on the city council, has no authority to vote on eminent domain matters... and if you go alllllllllll the way to the very last part of the story, at the bottom of the last page, you find out that Cryan denies having anything to do with the land deal and thinks it would be wrong to force its sale under Eminent Domain.
So let's untangle this, shall we?
A city has an area of abandoned industrial land. A speculator bought up the land hoping to sell it for a profit. The local city council wants to develop the land and decides to buy it, but apparently felt the real estate speculator was being unreasonable, so opted to force the sale under eminent domain. The land developer found this unreasonable and is now suing in court saying his due process rights were violated. A judge is reviewing it.
Looks to me like maybe the city council may have acted in a high-handed fashion... or like maybe the reporters didn't ask the city council members enough questions. I'm sure it'll all settle out in court. That's part of that whole "due process" thing, remember?
Most likely the state court system will be able to handle this adequately. But even if the land owner fails in state court, then under the Kelo decision he can still sue in Federal court, claiming his due process rights were violated or that the compensation was not just--Kelo never took any of that away. (Nor should it have.)
I'm sorry guys, but there is no crisis here. Just a land speculator who feels he got the shaft from a local city council, a news story that may or may not be fair to the city council, and a case currently pending in court.
Moreover, even if you wanted to say "public use" only means "owned by the government"--and that seems like a strained reading to me--then they could just take the land and charge private developers to use it. Which if you think about it is rather more dangerous, for it could be used for government to seize all land and force everybody to pay them rent, all to a great "public use."
Despite all the bluster and blather, when it comes to Kelo there's no "there" there. If you're worried about abuse, your answer is to look to your elected officials first, and the courts second.
I think we are more concerned about the broader implications of this decision. What those five Justices have promoted here is essentially socialism, where the government has a right to decide who will best "use" the land and suddenly have the power to strip you of your property rights because they want a Wal-Mart there instead of your house.
Broader implications? It's in the Constitution! It's from the Magna Carta!
Your recourse first and foremost is your elected officials, and second the courts.
public use means something, its not there for no reason. look at exactly what it says. your summarizing conflates the two parts, and excludes the public use part.
you seem to think people are opposing the idea of imminent doamin. You are wrong there. you are fighting the wrong fight. What people are fighting is the continual expansion of what "public use" means. so you screaming about the ignorance of imminent domain is irrelevant. completely.
you also ignore the history of property rights in this country. yopu are greatly over simplifying the the issue by pointing to the magna Carta and the words in the Constitution. You are ignoring the hundreds of years of case law - remember them.
it isnt that public has to mean only "owned by govt". but the idea of taking private land, at belkow ,market prices, to give it to another private owner- with no real public use at stake is just wrong! there is a higher burden that the govt has to overcome.
the problem is, your version, has no limits at all. NONE. you are asking the fox to watch the hen house. there are no limits, and it makes the words of the Constitution worthless.
just because they have been doing something does not mean they have been doing the right thing.
As for the founders' views on property rights: which ones? And how long did it last before they began building roads, forcing landowners to give public access to water sources, then giving land away by eminent domain to the railroad companies, the telegraph companies, and more? Do you know anything of the historic fights between cattlemen and farmers, and how eminent domain was used in those fights?
You are relying on the "slippery slope" fallacy to bolster your argument and it doesn't work. Much, much worse than Kelo has been allowed in the past, so any notion that it's steadily getting worse is false on its face.
It was not the Kelo decision that made it acceptable to take land in order to give it to private companies--that has a very, very old pedigree. My own father in law in the 1970s went to work at a very large General Motors factory called Poletown that was built through eminent domain, and that was hardly the first example of such a thing.
Overturn Kelo and what will you have? A host of case law that has allowed many different things, some much more extreme than Kelo allows.
Thus if you want to seriously make progress on the issue, you have to think very hard about what an acceptable definition of "public use" would be, and advocate for a Constitutional amendment defining that--or, failing that, at least some specific legislation. Otherwise, it will have to be up to the courts to decide on a case-by-case basis. That's just how it is.
The fact that critics of the Kelo decision are so incoherent they cannot define clearly and distinctly what they think the limits of "public use" would be indicates to me that this is an emotional issue not a logical one--and that what you are advocating is no particular position at all except that you want judges who will rule your way. That you hope will rule your way.
With no firm legislation or amendment defining the limits to "public use," you will always be dependent on the courts to figure it out as best they can. That's how the Constitution works.
In other words, from the 13th century, to the 18th, to the 19th, to the 20th. Yeah huge leaps there. C'mon dude. :-)
The Magna Carta was proclaimed law in 1215. Would you care to explain to me where and when property rights were more respected prior to that? That document was the first that I'm aware of to proclaim a right to property for free men--and from day one it was defined not as an uninfringeable right, but one that could only be infringed by certain processes of law and respecting certain other basic rights of the property owner.
I mean, c'mon man, this is actually funny. The Magna Carta is the fundamental basis for our ideas of property law, and now you're suggesting it's some kind of dread slippery slope toward statism? It's the Magna Carta for God's sake!
Find me if you would ANY period of history ANYWHERE where the government did not have the power to seize property. Anywhere in the world, any time in history. You can't do it!
What you can do is find that remarkable point in history when it was declared that government CAN'T just do this whenever and wherever it wanted, that it must follow RULES about it.
And that leads to the question you guys don't want to answer directly: when is it okay, when is it not okay. You're acting like that was once set in stone, and I'm telling you it never was.
This is what judges do for a living man, especially if you don't have firm legislation to guide them.
They lost their property and investment to a project that was never started. Sucks.
Sure government has the right to invoke ED, but since our government is elected by us we'd better demand that our officials take that right very seriously and be damned sure it's being done for only for necessary purposes. That proposed project ruined a lot of lives and communities for naught.
Dean
Granted there is some journalistic stupidly happening here.
The two questions should be and public use just compensation.
The issue is getting a lot of sensitivity lately because
1) of cases as the government is more prominent in society the definition of “Public Use” is necessarily expanding.
2) A number of cases recently where local government is expanding, and perhaps abusing, the prerogative.
3) The use of regulation to “take” with out the government taking title and avoiding the payment of compensation, just or otherwise.
Both the Constitution and the Magna Charta are, in context, restrictions not permissions. The question should be what is restricted not what is permitted. The permission to take without compensation would be assumed with these clauses.
Just Compensation.
My father worked for the City of Chicago when they were clearing space for an expressway, a public use. The City always offered well below market price. Those who went to court did get a fair price. More if they had a politically connected lawyer.
Of course Chicago, with the best judges money can buy, the Immanent Domain provision has been used to reward political allies. The government takes the property and the court awards a very generous compensation. When challenged that the seller got much more than fair value, the answer is that is what the judge awarded.
Immanent Domain is essentials for the functioning of society, however given it’s potential for abuse it needs solid restrictions, and I would submit stronger than Kelo requires.
But isn't the reason the city is using "taking" because they do not want to pay fair value. In Kelo the plaintifs were home owners who did not want to sell. If the guy is a speculator he wants to sell. If the news stories are correct(?) the point of the "taking" action is to avoid paying "just compensation."
His real position seems to be--from what I can get from the news accounts--is he didn't like their offer and they didn't like his so they decided to play hardball. Whether they get away with it or not will be up to the state court system--although he can always go to the Federal courts for relief if that fails him.
Any possibility of that here? No one seems to be asking that question. You can fulminate that cities should never remove blighted abandoned buildings if you want, but that hardly seems rational. So if they want to, who decides--other than the elected officials I mean?
But really, Dean's right here. The sovereign owns all the land and always has. It just kindly lets its wholly-owned serfs improve some of it for their own petty purposes now and then, temporarily. I remember thinking about this when watching a movie about the Oklahoma "Sooner" land rush. Everyone had to pay the govt. and go by their rules to carve out some land that they then got the right to defend and develop and pay taxes on.
Which means they aren't serfs anymore, they have the same basic rights that were once exclusively held by barons and dukes and counts and whatnot. Indeed, if there's any slippery slope in action, it's toward letting more and more commoners have the rights and privileges that used to be the exlusive domain of a tiny minority.
As to government theft being ancient, so was slavery. Are you going to say: "Buying and selling human beings is part of the fabric of the good ol' Southern way of life, and it's sanctioned in the Constitution. Dred Scott was a good decision." Or: "Women have been killing their offspring since time immemorial. Roe vs. Wade was a good decision."
I'm a conservative and I defend the great achievements of the past. But that doesn't obligate me to defend everything that ever happened in the past. Conservatives also believe in the sanctity of property rights.
As Dean noted, this slippery slope had long been started. The most infamous being in the 50's and 60's when it was ruled that property could be acquired by Eminent Domain because of blight. Who is to define what blight is?
With the Kelo ruling, states are being forced to better define Eminent Domain. In Mississippi's case, the original wording in the 5th Admendment is being used along with wording that property cannot be seized for economic reasons, i.e. economic developement.
The "courts have been interpreting the clause that way for a long time" argument simply doesn't hold water. Forget property rights for a moment, although Kelo founders on that rock as well. The other fundamental piece of the issue is this: A written constitution has to mean something. That meaning has to be fixed, or there is absolutely no point in having a written constitution, save to provide something to give government cover while it does whatever it damned well pleases. This is supposed to be a government of enumerated powers, not a government that can do whatever it damned well pleases. If the government wishes to do something prohibited it by the Constitution, there is a mechanism for amending the Constitution (the mere presence of which ought to be sufficient evidence that the words of the document are supposed to have a fixed meaning). That mechanism does not, I hasten to point out, involve the judiciary at any point.
The biggest problem with Kelo is the corrosion of domestic tranquility (as witness the across-the-spectrum outburst). Every person pushed into questioning the legitimacy of government is a step down a road with a dark and bloody end. It won't take many more Kelos to start producing more Carl Dregas (Google Carl Drega), which is something all thinking people should wish to avoid.
Dean, you don't have any sympathy for the speculator in the account you cited, and that's fine--you don't have to. I tell you whut, though, Boomhauer--Google Riviera Beach, Florida, and let us know how that sits with you.
I note that you do not even deny my history, that the Constitution has had eminent domain embedded in it since days of President Washington, it is embedded in the core of the Bill of Rights just as it was embedded in the Magna Carta. The very concept of property rights for free men springs from that. Why do you not even address this? How can you call rejecting that as conservatism?
Ken: The meaning of "public use" is whatever our publicly elected officials think it means, within the other rights we all hold, subject to ratification by the voters. Either that or it's whatever a judge says it means. Which do you prefer, elected or unelected? You'll get it one way or the other unless you define it better.
There have been complaints about eminent domain abuse since the founding of this country. If you want to do something about it, either suggest specific legislation, specific Constitutional amendments, or get involved in politics. Because if you don't have specific amending language to the Constitution, or specific legislation that you can explain, all you're saying is that you want to shift the definition of "public use" from elected officials to unelected judges. Who do you trust more?
This is what I meant by twisted:
Justice Sandra O'Connor gave the following dissenting opinion:
"Today the Court abandons this long-held, basic limitation on government power," she wrote. "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded -- i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public -- in the
process."
The effect of the decision, O'Connor said, "is to wash out any distinction between private and public use of property -- and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment."
Just because something CAN be done doesn't mean it SHOULD be done or that it's the right thing to do. Eminent domain is a necessary governmental power if we want roads and schools, and people aren't outraged about that.
The first (well-known, at any rate) exception was for the railroads, and was balanced (sort of) by the common-carrier requirements imposed upon the railroads.
Again I say: Look at the Riviera Beach case. Or at the new digs occupied by the New York Times, which made use of eminent domain and which gives the Times veto power over what kind of other tenants may or may not occupy the premises (and which they use to keep it hoity-toity).
What we are talking about with Kelo, with the defeated (by a razor margin) Issue 47 in Lakewood, Ohio, and with the cases I've outlined above, is the government taking land from private owner A and giving it to private owner B in return for what is, in essence, a bribe--a promise to generate more tax revenue from the condemned property.
The Constitution emphatically does not mean whatever an elected or unelected official says it means. Your argument here is a species of the "presumption of constitutionality," a common majoritarian argument. My response: If the words of a document have no fixed public meaning, the document has no meaning either, and tyranny of the majority is no less a tyranny than any other kind.
With all due respect, Dean, having read what you've written here and in the comments at Rosemary's, you're arguing your feelings, not Constitutional law.
I call bullshit on that and any defense of this most indefensible, legally sanctioned theft.
It is not fair, they were not given a fair price and their homes weren't blights on the community. The icing on the cake is that all those people that fought for their homes, in Kelo, were charged back rent for living in their own homes while the case was appealed. "The New London Development Corporation condemned the homes in 2000. Suzette and her neighbors fought back, literally making a federal case out of it. Since the city won, it claims that all of these people have been living on city property for the last five years, so they owe retroactive rent." Kelo owes $57,000 and another guy owes $300k.
Fair? My achin' ass!
You're saying "If you want to change the definition of 'public use', then pass an amendment."
The 'other side' is arguing that the 4th Amendment _as_written_ can be (not _is_) exactly that amendment.
In other words, if you rewrote a concise version of the current _application_ of the eminent domain laws, you would _not_ put the words 'public use' in there, because there's essentially no point. There is no such thing as 'private use', witness smoking laws that prohibit invitation-only private clubs from having smoking on the premises.
If _everything_ is public use, then the words are redundant. All the words that are part of the Constitution should mean something. Therefore the interpretation of 'public use' well beyond just the Kelo case is incorrect.
This doesn't mean 'eliminate eminent domain'. Many of the western states have more restrictive clauses in their own Constitutions for precisely this reason. Seattle still has ports, roads, sewage treatment, and 'fish crossings'. Anyone wishing to attempt a Kelo-like development here had better be prepared for 1E6 lawsuits, and paying more than market value for the properties. (Read: Paul Allen).
And another afterthought, the Michigan supreme court struck down the decision that allowed the Poletown ED seizures, so that's not law on your side.
I don't see how a court can reasonably be expected to determine what is, and what is not, public use. The constitution does not define the term, and the common law defers to the legislature in defining the term. What rules, what rubric is a court supposed to use to decide what is and isn't public use? And where is that rule or rubric laid down that the court may follow it?
It seems to me that conservatives who are upset about Kelo are essentially asking the Supreme Court to invent a distinction which does not exist in precedent.
Why would it be legitimate for the court to do that when it isn't legitimate, in the eyes of many conservatives, for the court to invent the rules of due process enshrined in Miranda? If it's procedurally incorrect in one case, it's procedurally incorrect in the other, no?
There's a serious technical problem involved in the determination of 'fair market value' for properties which are known to be slated for public acquisition: the fact of the government's interest, and the fact that the eminent domain rules ensure that the government will buy the property, mean that the price isn't determined by market activity. Is anyone aware of any economic studies of this problem?
The proper place to fight abuse of eminent domains is in the state legislatures, or via ballot initiative in states which allow it.
The former. The latter was just icing on the disgusting cake.
The Jersey case, to my reading, is just another example of good ol' machine politics in action. The main interesting tidbits in the story involve how the city put the landowner off, suggested their personal preferences for developers (all nice local boys who paid their dues to the local party), and then played legal games when the guy didn't take.
Eminent domain, in this case, was merely the chosen tool. Had they not been able to use eminent domain, they could have used zoning, building permits, endless public hearings, environmental laws, etc.
If anything, the council's use of eminent domain as their tool of choice was clearly a mistake on their part. By using eminent domain in a time of national paranoia regarding the practice, they drew attention to their shenanigans. It was probably an oversight on their part, but it's an oversight they're likely to pay dearly for at the polls.
This is a nonsense argument. The fact that they've done it for a long time doesn't make it right. Public use means use by the public- schools, roads, etc. Of course realizing this requires some basic mastery of the obvious. If they interpret freedom of speech to mean the government can control what you say, and they do it for a long time, is that okay too?
How about if they say "the right to bear arms" means we have a right to wear bear-skin sleeves, and they do it for a long time? Would that make it amusing if people objected?
Kelo is to property rights what McCain/Feingold is to freedom of speech- a symptom of a disease in our cultural elites. And waiting for it to be clearly abused is a mistake. Playing officer Barbrady "move along people, there's nothing to see here" doesn't indicate you're sophisticated, (regardless of whether you are "bemused" or "rather stunned," or not) rather it indicates naivete.
A land grab is not a land grab and an Islamic crescent is not an Islamic crescent, right?
Still a great site. Still a big fan. Sometimes I am stunned and bemused by the naivete though. :p
Kelo is utterly and absoloutly correct. You don't like it? Then change it! But people are so lazy! Any decision by any court can be changed by the legistlature, you know, those guys that get voted to do stuff. But that takes effort.
The SC is best used to enforce existing law, NOT MAKE NEW LAW. Kelo is existing law, you want new law, make it yourself.
Xiaoding
I'd better note that Dean did express his outrage at Suzette Kelo being charged $57,000 "back rent". Dean is mistaken about the larger issue. I should not have implied that he himself is a socialist, only that socialistic mixed-economy New Deal premises are operating within his thinking here. "Stunned and bemused by the naivete", I am, too.
Actually, what Kelo established is worse, less honest than outright socialism, in which the government owns and operates the property itself (as in the case of roads or schools). What it establishes instead is a form of fascism or National Socialism, in which a few big corporations are allowed to make profits and in which nominal property owners are expected to operate their property, but in which the government actually owns and controls all and can seize anybody's property at will and give it to the favored big corporations. This should be anathema to any conservative, libertarian, or even honest Leftist.
This is not capitalism. Under capitalism, a businessman earns his profits honestly through his own affort and ability on the free market -- and does not run to government to get subsidies or to grab other people's property. Whoever does so is nothing but a corrupt hypocrite when he calls himself a capitalist. He shows by his actions that he has not the most rudimentary understanding of what free enterprise means. Capitalism is the separation of state from economics for the same reason we have separation of church from state.
What is "fair compensation", a "fair price"? It can only be decided by mutual consent. If I go into a jewelry store and see a diamond that I want for mr girlfriend, but I can't afford it right now, do I stick a gun in the owner's face and say: "Gimme that, and I'll pay you what you can get for it at the nearest pawn shop"? No! That's robbery. It's like raping a woman and then paying her the going price of a prostitute. Obscene analogy but the principle itself is obscene.
As for who do I trust more, elected officials or unelected judges -- well, in this case, neither, because the judges failed to do their job. Unelected judges should strike down the un-Constitutional actions of corrupt elected officials, instead of stretching, slicing, and twisting the Constitution to make it mean whatever is expedient at the moment, as they have been doing ever since the New Deal. The problem we have is not judicisl "activism" but judicial passivism. The courts, especially the Supreme Court, should be more active in restraining government.
"In question of power then, let no more be heard of confidence in man, but rather bind him down from mischief with the chains of the Constitution."
-Thomas Jefferson
The words "public use" do have a meaning clearly different from "public benefit". The former is clearly narrower than the latter. I don't like it when the Court declares portions of the Constitution null and void, as they did in the 1870's with the priviledges and immunities clause of the Fourteenth Amendment.
How can we tell that the Court has rendered a portion of the Constitution null and void? One way is when lawyers cease to use it in argument because it is ineffective. If public use is construed so broadly that a lawyer cannot use it to successfully argue a case before the Court than the Constitution has been subverted.
When the Court does this - even over time with successive unnoticed precedents - it threatens all our rights.
Yours,
Wince
Those of you who pretend that there was some broadly understood property right before the Magna Carta are living in a completely separate universe of your own.
Bryan: Yep, the Michigan Supreme Court decided that under Michigan law the way Poletown was handled was inappropriate based on the Michigan constitution and Michigan statute. Score one for federalism.
Wince and others: It is hardly clear what the limits are on "public use." Economic development is a valid public use so far as I'm concerned, and despite the emotions it brings up in a lot of people, I'm hardly alone in that belief.
Government has been forcibly purchasing property through eminent domain for economic development purposes since this country's founding. What conservatives should be asking is what the limits to that should be, and how to legislate that. Despite their wishes to the contrary, the Constitution is clear on the matter.
You cannot on the one hand say "judges shouldn't legislate from the bench," and on the other say, "judges should interpret 'public use' the way I want them to and not the way others want them to."
Xiaoding has the right of it so far as I can see.
"You cannot on the one hand say "judges shouldn't legislate from the bench," and on the other say, "judges should interpret 'public use' the way I want them to and not the way others want them to.""
The logical conclusion of that is that judges should not exist at all and that everything should simply be decided by majority vote. An essential role of judges in a Constitutional republic (not democracy) or monarchy is to draw clear lines defining legal concepts such as "public use", "due process", etc.. Judges have always done this. If that's "legislating from the bench", so be it.
"I should not have implied that he himself is a socialist, only that socialistic mixed-economy New Deal premises are operating within his thinking here. "Stunned and bemused by the naivete", I am, too."
The basic premise of the mixed economy is pragmatism or utilitarianism. But this not the fault only of Marxists and New Dealers but also of those libertarian economists who have defended capitalism on utilitarian grounds of its greater effeciency. Capitalism must instead be defended on moral grounds that it is the only system that recognizes individual rights, including property rights. Nothing less will do.
The naivetee here is not on my part; I note the history, I note the documents and the traditions, and I note what reality has been from the beginning. You guys spin fairy castles in the air of some idealistic universe that has never existed. And you contradict yourself: judges should decide despite majority rule, but now you're presented with a case where the judges did something you disagree with and you're furious.
The system as it exists has always both recognized property rights and limited those rights. That is a reality that you must face full on. Which is why I say again, if you want to do something other than stomp and scream and shout, if you actually want to change something, you ought to be proposing Constitutional amendments or at least legislation that will clarify what you want.
A lot of the criticism of Kelo was-is based on poor information anyway. The taking was not to get land for a pharma company (it had already gotten the land it wanted - in fact, it has already built and is using thee complex it wanted), but for a public park and marina. Still lousy, especially since the city had turned over responsibilities to a private company and it was that company that exercised eminent domain (and also decided to try to collect ex-post-facto rents).
“The difference is that nowadays the serfs have actual rights that the sovereign can't violate, including the right to sell, the right to inherit, the right to due process and compensation if the state has a need for the land, the right not to have soldiers forcibly quartered upon your land, and so on.
”Which means they aren't serfs anymore, they have the same basic rights that were once exclusively held by barons and dukes and counts and whatnot.”
Almost. Go ye and read the Assizes of Jerusalem, and remember that Magna Carta was conceived in that light, as a statement of the feudal contract. Remember also that Anglo-American real property law has developed from the feudal contract (albeit having received fundamental modifications through the legislation of Edward I "Longshanks", which make Magna Carta less relevant than it seems).
Eminent domain always has meant:
"You've got this patch of land that I covet, and I have power and you don't have shit. So fuck you."
They mostly went to Canada as penniless refugees, where they founded a movement called the "United Empire Loyalists" which survives to this very day, I understand.
Arnold Harris
Mount Horeb WI
We have developer A, a national firm, buying property in order to build townhouses, probably to the density limits allowed by local zoning, probably seeking to maximize housing value which, coincidentally maximizes property taxes. They negotiate with the landowner in good faith and have a deal to buy.
We have developer B, a local, politically connected firm that wants to get the property to build townhouses, probably to the density limits allowed by local zoning, probably seeking to maximize housing value which, coincidentally maximizes property taxes. They negotiate with the local power broker by hosting a fundraiser and pass him about 90k in direct and indirect legal graft.
We have a town council that depends on this local power broker for their jobs voting to seize the property so that A doesn't build the houses, B will. Now you can say that this isn't the same issue as Kelo. I won't gainsay you. What you can't do is say that the identity of the developer building essentially the same thing on the same property is a public purpose for which eminent domain is suitable.
I draw all to the following lines to the story:
In most places, that's called interfering in interstate commerce. A federal constitution no-no. We gave up that sort of thing with the Articles of Confederacy.
Now, remember, the taxes generated by each project will be similar, the number of jobs generated, nearly identical, the resulting housing stock likely indistinguishable from each other, so what possible public purpose is there?
A little personal history here. I ended up manning the phones one evening at the local County Republican Committee when I was much younger. Andrew Cuomo called, looking to kiss the county boss' ring in order to get a project greased through and was very up front about it with me. I figured the Governor's kid was important enough to interrupt the strategizing over the boss' upcoming testimony to the statewide political corruption committee (Cyrus Vance was chairing it). I was asked to sit in on that testimony in the public seats.
I ended up driving a bunch home when the boss said it was almost too much to hold back saying that he could tell somebody who had recently asked him recently to illegally intervene in a development project, Andrew Cuomo! The laughter filled the car.
That's NY and NJ politics. Don't kid yourself otherwise. It might be different elsewhere but these jokers? They're dirty as sin. Dean, you're discrediting yourself with this. Think!