De-eminence

According to this good round-up of Kelo fallout nationwide, since the June 23 Supreme Court decision, "at least 27 states are looking at further restrictions" on eminent domain. Even the Constitution State!

Connecticut Gov. Jodi Rell asked cities and counties to forestall condemnation for private development until state legislators reconsider how and when to use eminent domain.

"It's the 21st-century equivalent of the Boston Tea Party," says Rell.

Comments

Ugh | July 29, 2005, 3:09pm | #

Well, it appears Kelo will do some good, at least in the short term.

theCoach | July 29, 2005, 3:11pm | #

Ugh, thanks for supporting Joe.

joe | July 29, 2005, 3:14pm | #

It's good that states are having these conversations.

KipEsquire | July 29, 2005, 3:22pm | #

This reminds me of Boy Scouts v. Dale -- the anti-Scout backlash was so intense that one could say they won the (court) battle and lost the war.

Matt | July 29, 2005, 3:23pm | #

Okay Federalists, are you glad the states are doing this for themselves or would you rather have The Supreme court draw the line?

Hakluyt | July 29, 2005, 3:24pm | #

Urban planners nationwide are squeling like a stuck pig. :)

Hakluyt | July 29, 2005, 3:25pm | #

Matt,

As its a matter of the Fifth Amendment, the Court should draw the line as it was in 1791.

Matt | July 29, 2005, 3:32pm | #

So, Hakluyt, if a particular state took a more extreme view of property rights, going beyond what you think the SC should have ruled, in the ensuing lawsuit, you would be in favor of the SC's ruling?

Hakluyt | July 29, 2005, 3:45pm | #

Matt,

No, the S.C. ruling would provide the base beyond which the states could drop below. States can always grant greater protection than that of course (see states recognizing a right to privacy extending to homosexual relations post-Bowers).

joe | July 29, 2005, 3:46pm | #

Easier said than done, Hakluyt.

"As it was in 1791" how? That's the hard part.

Hakluyt | July 29, 2005, 3:46pm | #

...could not drop below.

Hakluyt | July 29, 2005, 3:48pm | #

joe,

Not really.

Randolph Carter | July 29, 2005, 3:49pm | #

I think the "Boston Tea Party" rhetoric is a little over the top... It's not like a bunch of citizens attacked the city planner's office (no offence, Joe) or demolished someone else's house.

I'm always amazed at how if anyone tried to do something like the American Revolutionaries today, they'd either end up in a nut house or a 6 foot plot.

joe | July 29, 2005, 3:50pm | #

Matt,

Hakluyt is right. To the degree that the Takings Clause defines a property right, the states may not violate it. You might as well claim federalism allows a state to ban mosques.

The debate is about what those rights defined in the clause are. Whatever the hell they are, the states are bound to respect them.

zach | July 29, 2005, 3:52pm | #

hakluyt seems to have made a habit of simply dismissing joe lately.

Well, it appears Kelo will do some good, at least in the short term.

i guess it could do some good in a sense, i mean the "holy shit this is fucked up we had better do something fast" sense. this is all stuff the states could have done before the ruling.

Eric the .5b | July 29, 2005, 3:52pm | #

I personally wouldn't mind either federal or state laws to severely restrict the practice. As an issue described in the Constitution, I see no obvious reason why a federal law would be inappropriate.

John | July 29, 2005, 3:53pm | #

Matt,

The Supreme Court needs to draw the line when it "says right there in the constitution." It shouldn't be up to the States to save the 5th Amendment anymore than it should be up to them to save any of the other Amendments. I don't expect much out of the Supreme Court, but the ability to read and understand the words, "nor shall private property be taken for public use, without just compensation" is definitely one of the basic requirements of the Court, which the liberal wing of the Court unfortuneately failed miserably.

joe | July 29, 2005, 3:53pm | #

Well aren't you just King Shit of difficult questions.

Here's a clue - when there's a controversial debate going on that has resulted in a few dozen Supreme Court decisions over the course of a couple centuries, the guy saying the answer is easy is the dumbest guy in the room.

Eric the .5b | July 29, 2005, 3:54pm | #

Er, as IT is an issue described in the Constitution, not ME.

joe | July 29, 2005, 3:55pm | #

I was actually saying that to Hakluyt. John's post was just the gods smiling on me.

Eric the .5b | July 29, 2005, 3:57pm | #

And the guy jumping up and down saying everyone else but him is wrong, even when he changes his opinion a few times, is...?

Anyhoo...

Rich Ard | July 29, 2005, 4:09pm | #

...amusing?

Eric the .5b | July 29, 2005, 4:14pm | #

Personally, I really don't get something. If Kelo was really just an affirmation of long-standing practice, why the sudden explosion of "Ooh! Ooh! We've got the green light!" takings by some local and state governments at the news of the verdict? Why all the proposals by other local and state governments to restrict the practice to what they and their constituents thought it meant before Kelo?

Or are we back to "OK, the ruling is kind of dizzying and weird and open-ended"?

Hakluyt | July 29, 2005, 4:21pm | #

zach,

I've explain the historical nature of the issue enough that I feel its well within the bounds of propriety to do so.

joe,

Here's a clue - when there's a controversial debate going on that has resulted in a few dozen Supreme Court decisions over the course of a couple centuries, the guy saying the answer is easy is the dumbest guy in the room.

If you had read many Supreme Court decisions you'd realize that the members of that august body often tend to make matters far more difficult than they really are. They do this because they are often involved less in interpreting the Constitution or a statute, than they are in balancing interests, working out appropriate policies, etc. Also, as I told you before, the doctrine of the Kelo decision isn't a couple of hundred years old; that's why almost all the cases it cites to are from the 20th century and nearly everyone of those dates from the 1950s onwards.

Hakluyt | July 29, 2005, 4:24pm | #

Eric the .5b,

Because its a dramatic expansion of the state's power to take property for "public use."

joe,

Note that I see this sort of behavior in all areas of Supreme Court jurisprudence; take the "abstention doctrines" as an example.

joe | July 29, 2005, 4:33pm | #

"If Kelo was really just an affirmation of long-standing practice, why the sudden explosion of "Ooh! Ooh! We've got the green light!" takings by some local and state governments at the news of the verdict? Why all the proposals by other local and state governments to restrict the practice to what they and their constituents thought it meant before Kelo?"

If you actually read the stories, almost all of them are cases in which the local and state governments already had the projects in the pipeline, and stopped midstream because the Kelo case reached the Supreme Court. Before this case was ever filed, they knew they were within their legal authority to do the takings, and only held off in case the Court promulgated a novel interpretation, and struck down their longstanding rulings. A lot of the cases you're seeing don't even involved Economic Development takings, but blight takings or some other kind. The only reason they would wait before going forward until the verdict came in is because they were holding off in case the Court ended up putting forth a broad ruling. Also, you're seeing a lot more takings stories in the press because it's a hot issue.

The IJ and the Reason staff should be commended for how effectively they spun the base on this one.

joe | July 29, 2005, 4:36pm | #

Hakluyt, I don't know what the "abstention doctrines" are. I really only know about this one little corner of the law.

I'm flattered that my commentary on it led you to believe that I was an expert on the broader body of Constitutional law, but if you want to bring up topics other than land use law, you're going to have to dumb it down for me.

Hakluyt | July 29, 2005, 4:40pm | #

Some of the historical facts about eminent domain:

* The phrase came into use in the U.S. in the 19th century and is derived from Hugo Grotius (who is more famous as the modern father of international law).

* We get our notion of eminent domain (though in England and Wales it is called "compulsory purchase" - a phrase I perfer) from English law.

* "Public use" (one of the two limits on the use of eminent domain) as it was originally intended did not include transfers to for-profit private entities (joe will talk a lot about Mill Acts, but as those laws were enacted prior to the 14th Amendment they are really inapposite). Its only with the 1954 Berman decision that this became the case.

* The English Common Law tradition (as is evidenced in the writings of Blackstone) rejected Kelo's understanding as well; as it allowed only transfers where the property would be owned by the state.

joe | July 29, 2005, 4:40pm | #

"Also, as I told you before, the doctrine of the Kelo decision isn't a couple of hundred years old; that's why almost all the cases it cites to are from the 20th century and nearly everyone of those dates from the 1950s onwards."

The doctrine was not a couple hundred years old, it is true, but the principles and precedents underlying that doctrine date back the founding, and the doctine itself was made necessary by changing circumstances and practices. Sort of like how "taking" came to mean, in some circumstances, "regulating."

Hakluyt | July 29, 2005, 4:43pm | #

Indeed, if we simply limit ourself to the English Common Law tradition and how that worked out in the colonies up to 1791, it is clear that Kelo was badly decided. That's why the majority avoids the historical issue altogether (including how terms like public and use were defined in the 18th century) and uses phrases like "a more natural reading" and the like.

Hakluyt | July 29, 2005, 4:45pm | #

joe,

Name me one decision at the time of the founding that looks like anything found in Kelo. One decision.

...but the principles and precedents underlying that doctrine date back the founding...

The principles and precedents actually are against Kelo.

joe | July 29, 2005, 4:47pm | #

"Its only with the 1954 Berman decision that this became the case."

Really? What about private ways? Hmm?

"but as those laws were enacted prior to the 14th Amendment they are really inapposite" And immediately struck down when challenged after the adoption of the 14th, under the application of the Fifth Amendment to the states, right? Right?

"The English Common Law tradition (as is evidenced in the writings of Blackstone) rejected Kelo's understanding as well; as it allowed only transfers where the property would be owned by the state." Of course, the relationship between the Crown and land owernship is different in England. Ever see a map of land ownership in (and around) a town in England? The comparison is problematic.

Hakluyt | July 29, 2005, 4:48pm | #

joe,

...and the doctine itself was made necessary by changing circumstances and practices.

Sorry, you want it both ways dude. You want precedent and you want change at the same time. You can't have both. Kelo is absolutely foreign to English Common Law and to the notions of "public use" as they were understood in 1791.

joe | July 29, 2005, 4:49pm | #

Read harder, Hakluyt. I rebutted that before you even argued it, in the very post you quoted!

Hakluyt | July 29, 2005, 4:52pm | #

joe,

And immediately struck down when challenged after the adoption of the 14th...

They would have to be challenged in court to be struck down. The courts aren't legislatures. Do understand the nature of the bodies you are writing of. *shakes head in disbelief*

Of course, the relationship between the Crown and land owernship is different in England.

Those same strictures were transferred to American law; especially because Blackstone was the authoritative source on the law prior to Justice Story's writings on American law.

Hakluyt | July 29, 2005, 4:54pm | #

joe,

You rebutted nothing. You did reinforce my thoughts on your ignorance of American legal practice in the 18th century though. The concept of "public use" was the same as it had been in English Common Law.

Hakluyt | July 29, 2005, 4:57pm | #

joe,

My suggest is this. Go pick up copies of the volumes of the of Blackstone's Commentaries; they are the authoritative source on American law at the time and were the source used by all lawyers, lawmakers, etc. when dealing with the practical application of law. Reading Montesquieu's Spirit of the Law will provide you with other relevant source.

joe | July 29, 2005, 5:01pm | #

So your smug little head shaking for everyone to see amounts to a "NO." That is, they were never struck down after the adoption of the 14th Amendment. The matter has never been settled in court. The Mill Laws could well stand up if ever challenged. I think they would, and I've got the majority opinion, the concurrance, and one of the dissents in the latest case to back me up.

The phony-shock-at-the-opponent's ignorance is a really dumb arguing technique, btw, because when you get caught doing it, it makes you look disingenuous. So does pretty much every playing dumb technique.

joe | July 29, 2005, 5:13pm | #

"Those same strictures were transferred to American law; especially because Blackstone was the authoritative source on the law prior to Justice Story's writings on American law." But thet application had to be different, because we're a res publica.

In England, the crown owned all the land outside a village. Someone would be granted a patent to build a mill in the crown's land, the crown would give him ownership of the mill site, and the the crown would authorize the miller to flood a portion of the crown's land by building a dam and creating a mill pond.

Obviously, this is not how it was done in the United States, at least not all the time. There were, obviously, land grants, but mills were built involving all private land, too. The miller would buy the land for his mill site on the market, and the government would use its eminent domain power to compel the use of the private land that the mill pond flooded.

The English system of land ownership had no need to define the law on this, because the land that was going to be flooded was the government's - they didn't have to authorize the taking of private land. The Mill Acts themselves demonstrate that the application of the principles of English law in this area to the American system of land ownership required the promulgation of new applications of the old doctrine. Sort of like Berman.

BTW, the Mill Acts were upheld in states that had equal, as well as greater, takings protections in their own constitutions. Your assertion that, because they were never considered under the 5th because the 14th hadn't yet been adopted, there isn't a body of law by which to ascertain their acceptability under 18th century jursiprudence, it wrong. They were considered, and your side lost. Even back then.

joe | July 29, 2005, 5:15pm | #

Would that be the ignorance that leads you to, repeatedly over the last week, regale me with obscure legal references that you assumed I'd understand?

Just argue the law and the facts, chief, and stop trying to spin your studied confusion into poses for the peanut gallery.

joe | July 29, 2005, 5:17pm | #

It's pretty clear whose the lawyer and who's the planner, eh?

You keep making unadorned references to the names of past cases and texts, and I keep talking about buildings and government practices.

joe | July 29, 2005, 5:23pm | #

...and you never explained why changing regulatory practices required the principles behind the Takings Clause to expand the definition of takings in Lucas, but changing development practices don't require, or even allow, the expansion of the definition of takings under the predecessors of Kelo.

And please don't play dumb on the difference between principles and applications.

joe | July 29, 2005, 5:24pm | #

To repent for my fifth, now sixth, consecutive post on this thread, and my hoggishness on all Kelo threads, I promise that the next Kelo thread will be a joe-free zone.

I won't even read it, so I won't be tempted.

Hakluyt | July 29, 2005, 5:50pm | #

joe,

Again, you want it both ways; you can't have it both ways.

But thet application had to be different, because we're a res publica.

No, the application was the same; states/colonies applied "public use" in the same manner that English Common Law and they did so especially in light of the influence of Blackstone. I can reiterate the this point all day. I suggest you read Blackstone. :) Barring that you will remain in ignorance.

Would that be the ignorance that leads you to, repeatedly over the last week, regale me with obscure legal references that you assumed I'd understand?

There is nothing in the legal realm that you understand; that I like to mock you just for my pure pleasure.

You keep making unadorned references to the names of past cases and texts, and I keep talking about buildings and government practices.

Well, it is the law we're talking about here. I guess maybe I should start talking about civil engineering practices instead, but that wouldn't shed much light on how the term "public use" was used in 1791. In 1791 it was used exclusively to mean transfers of land to the state for state ownership. Anything else is a new creation based on the whims of individuals, etc. wishing to steal someone else's land for private gain.

...and you never explained why changing regulatory practices required the principles behind the Takings Clause to expand the definition of takings in Lucas...

I believe I already told you to read Holmes' Penn Coal decision.

Of course Lucas also included government corruption. If you ever saw a picture of the area you'd see what I mean. Of course planners are immune to corruption I am sure. :)

Hakluyt | July 29, 2005, 5:52pm | #

joe,

BTW, all your statements about differing land tenure structures are meaningless; that holding land in fee simple was the norm in English America doesn't take away from the fact that "public use" meant the same in English America as it did in England.

joe | July 29, 2005, 6:02pm | #

Let's just say, the state didn't fight Lucas to the Supremes because the lawyers felt passionately that they'd win on the facts. Which is kind of funny, because just a little while ago, you were slagging the court for making broad rulings beyond what was necessary to settle the case, yet there were, what, 1001 readily available grounds for finding for the landowner, short of inventing a shiny new branch of jursiprudence. Remind me again, does a taking have to involve the government owning the land? ;-)

"Well, it is the law we're talking about here. I guess maybe I should start talking about civil engineering practices instead, but that wouldn't shed much light on how the term "public use" was used in 1791." Now, now, my modest minimalist friend, the law is to settle cases, not celebrate its own majesty.

And absent any commentary on the application of the Mill Acts to our republic in her younger days, I can only conclude that you are a royalist, a cad, a despiser of our constitution, and an antibonapartiste.

joe | July 29, 2005, 6:10pm | #

It is so incredibly facile of you to claim that land use law could be transferred from monarchist England into our radical experiment in respublicanism without some tweaking. *ah-private ways-choo*

joe | July 29, 2005, 6:11pm | #

"I guess maybe I should start talking about civil engineering practices instead, but that wouldn't shed much light on how the term "public use" was used in 1791."

Would you care to discuss canals?

joe | July 29, 2005, 6:19pm | #

If there is anyone else still following this thread:

Do you still believe that this is a simple branch of the law, in which the "plain meaning" and "original understanding" of the text make the proper outcome of a case that reaches the Supreme Court beyond dispute?

joe | July 29, 2005, 6:34pm | #

Ah ah ah, Hakluyt, you close cropped my quote. I didn't ask you to explain "why changing regulatory practices required the principles behind the Takings Clause to expand the definition of takings in Lucas."

I asked you why such expansion of the definition of "Taking" could be done, in fact HAD to be done, while being true to the original principles of the 5th, in the case of changing regulatory practices, but cannot even be comtemplated in the case of changing development and land use practices.

Is it because government regulation is a more interesting topic to you than development and land use?

Hakluyt | July 29, 2005, 6:46pm | #

"shoot to kill" joe,

If you want to change the Constitution, my suggestion is that you follow the means allowed for in the document.

As to the difference, well the analogy is to be found in what was in law and equity in 1791 at the time of the promulgation of the Seventh Amendment. Similarly, in the case of new types of takings one has to ask, was this analogous to what was contemplated in 1791? In the case of eminent domain regarding the "public use" standard we don't have to ask that question because there was already a clear division between what was public and what was private. Not every area of constitutional law requires the sort legal analysis found in Penn Coal in other words.

Hakluyt | July 29, 2005, 6:48pm | #

"shoot to kill" joe,

Yes, some areas of the law facile (such as the "public use" standard meaning what was meant in 1791), whereas others aren't.

Eric the .5b | July 29, 2005, 6:56pm | #

Before this case was ever filed, they knew they were within their legal authority to do the takings, and only held off in case the Court promulgated a novel interpretation, and struck down their longstanding rulings.

That's somewhat plausible, actually. I'll have to look into it. However, doesn't answer the second question of why everyone's jumping to stop a long-standing, non-novel practice.

The IJ and the Reason staff should be commended for how effectively they spun the base on this one.

Yeah, yeah. No one ever has a reason to disagree with Joe, it's all fanaticism and spin.

Paul | July 29, 2005, 7:07pm | #

A lot of the cases you're seeing don't even involved Economic Development takings, but blight takings or some other kind.

Joe...

I guess that depends on what the definition of 'is', is. Newsflash: Blight takings ARE economic development takings. The precedent set by the SC over blight takings was the foot in the door for the heap.

When localities started describing blight as 'houses with single car garages' or 'no central air-conditioning', the stampede had already started. What Kelo attempted (and failed to do) was stop the stampede.

Jennifer | July 29, 2005, 7:25pm | #

Joe--

What is the earliest case you know of in American history, where land was confiscated from one person and given to another private entity? The railroads don't really count since the land they were given, I believe, was mostly Indian land, which didn't count at the time.

joe | July 29, 2005, 7:29pm | #

Paul, 'economic development' and 'blight' have specific legal meanings in land use law. They often have different standing under the law. A lot of the state actions linked to in the original post revolve around this distinction. Tht was cute with the Clinton thing, but arguing about what words mean is what happens at the Supreme Court.

Eric .5b,

There is a movement to stop a longstanding, non-novel practice because there was recently a particularly egregious application of that practice, and a well-connected and -funded group pulled out all the stops to put it into the news.

"Yeah, yeah. No one ever has a reason to disagree with Joe, it's all fanaticism and spin." I think you might have misunderstood - I wasn't commenting on people who have a different opinion of the Kelo decision, but on the slick media blitz about the "torrent" of "new" eminent domain takings.

Hakluyt, "Similarly, in the case of new types of takings one has to ask, was this analogous to what was contemplated in 1791? In the case of eminent domain regarding the "public use" standard we don't have to ask that question because there was already a clear division between what was public and what was private." And we know that in 1791, mill owners could flood their upstream neighbors, even in states that had similar or stronger language in their Takings clauses. We know that in 1791, land could be taken to build private roads - roads that were neither owned by the public, nor accessible to them. And we know that in both of these cases, the justification was based on concepts quite similar to modern economic development.

joe | July 29, 2005, 7:42pm | #

Jennifer, I don't really know about the "first case," because the examples I gave about mill ponds and private roads go back before the founding of the United States. I know that the practice was so common that the states had mill acts on the books at the time the Constitution was adopted, and several of them had to rewrite their now-archaic laws to provide for just compensation, in line with the laws of the new Republic under the Articles of Confederation - that is, BEFORE the Constitution was even adopted.

joe | July 29, 2005, 7:44pm | #

That's funny, Paul, I though Kelo caused the stampede. There sure a lot of "new" takings cases in the news lately. Ahem. Ahem.

John | July 29, 2005, 9:32pm | #

Joe,

I don't see how you can equate Lucas to Kilo. As you have repeatedly pointed out in this thread the idea of what is a public versus private takings is an issue that goes back to 1791. Up until the 20th Century, however, the government had never regulated land to such an extent as to render it valueless as they did in Lucas. In that sense, Lucas really was dealing with a novel development in land use law that was not contemplated by the founders. Takings for public/private use do not fall into that catagory.
As far as your examples of takings for private use in history, they are not as you portray them. Yes, private land can be taken for private roads, but only in cases where the land owner is land locked and needs an egress to his land. This is hardly like taking someone's home to build a Toyota Plant. As far as mill owners being able to flood neighbor's land, this again is not analogous. Such laws are no different than laws that allow exteralities in return for payment. There are lots of rules like that in the common law, especially for existing land owners. To say that you can flood a neighbor's property or bombard them with the sound of your business is different than the government openly soliticing a business and forcing the person to sell the land. Your examples are cases of the government regulating the relationship between land owners, not openly ceasing land in the service of economic interests. By your analaogy something like the granting of riperean water rights would be a taking within the meaning of the 5th Amendment because the guy down stream may be screwed. Interesting argument, but no one short of Richard Epstein would buy it.

joe | July 29, 2005, 10:48pm | #

"Takings for public/private use do not fall into that catagory."

Really? They had urban redevelopment plans in the 1790s in American cities? Do tell. I thought they were a novelty of, at the earliest, the late 1800s.

"Yes, private land can be taken for private roads, but only in cases where the land owner is land locked and needs an egress to his land." Yes, precisely. Now, we know that the government doesn't gain its power to do this because of the private benefit to the landlocked landowner - that would be a private taking. And we know that neither public ownership, or public occupation, is the justification for such an act, because neither was necessary to authorize this action. What does that leave? Why, the public purpose furthered by having the parcel developed - typically, developed for some economic purpose, like industry or agriculture.

"This is hardly like taking someone's home to build a Toyota Plant." I agree, it is different. However, that difference is has nothing to do with the meaning of "public use."

"Such laws are no different than laws that allow exteralities in return for payment." First of all, the authorization for flooding land was always located in the eminent domain power in legal documents. This is why the Mill Acts had to be overhauled to pay compensation to the flooded landowner once republican constitutions were put in place - because the old colonial laws didn't require payment for takings. Once the takings doctrine changed, the Mill Acts changed to reflect them.

Second, the storage of the water that drives a miller's wheels was not an externality of the mill's operation. The creation of the mill pond was the purpose of the dam. The mill owner was taking his water, that he gained legal owership to by vitrue of openning a mill, and stored it on his neighbor's land. It's no more of an "externality" than a lumberyard putting stacks of boards on your property is an externality of a lumber wholesale business. That land sounds pretty openly ceased to me (heh).

John | July 30, 2005, 1:01am | #

Joe,

Lucas and Nolan both concerned areas of regulation never concieved of in the 1790s. Perhpas you can point to the rash of shore property regulation in the 1790s that the history books have missed. The idea that a landlocked owner had a right to a road for ingress and egress from his property was a common law right, long before the 5th Amendment. It defies credulity to think that the founders felt the need to reaffirm a longstanding commonlaw right in the 5th Amendment and to do so through such a round about way as putting it in terms of no takings for public use without compensation. That is clearly not the situation comtemplated by the 5th Amendment and an irrelevent example.

As far as the rights of mill owners to flood their neighbor's land, at best this is perhaps one example of an abuse of the 5th Amendment found in American history. Again though it is not forcing someone to sell their land. It is allowing someone to use their own land to the detriment of their neighbors. That is defferent than the government ceasing someones property to give it to another party. Whether it be water, or ash from a coal fired power plant, the principle is the same. All those laws are saying is that mills are so important that the government is going to excuse their owners from doing something that would normally be prohibited by the common law, namely altering the natural drainage to the detriment of their owner. While that may be a taking under the law in light of Nolan and Lucas, it was not a taking as the founders would have viewed it.

John | July 30, 2005, 1:30am | #

Ultimately, your argument boils down to that because there were a few examples in the common law where private owners were allowed to infringe upon neighboring land owners either through the building of roads or storning of water that the founders must have meant to affirm this in writing the 5th Amendment. I don't see how that follows. Even if your examples are examples of the government taking property for private gain rather than traditional public gain, why does that then mean that the phrase "for public use" enshrines these practices into the Constitution? The founders did not use the term "public or private" but instead used the term "public." I don't see any reason to think that the founders were contemplating mill laws or rights to ingress and egress under the common law. It seems much more likely that they were worried about the government seizing private property to be used for things like roads and military installations without compensation. Why else would they have used the word public and not the term public or private use? The ability or lack thereof to flood your neighbor's property is a landuse law. There is no evidence that the founders were considering the implications to common law land use when they wrote the 5th Amendment. Nothing in the language deals with land use. Instead, the Amendment concerns, at least by its plain language, government seizure of land for public use. A mill or private ingress and egress are not public use.

John | July 30, 2005, 1:52am | #

Two more points Joe,

In the case of an ingress and egress road, the land owner whose land the road is built upon recieves no compensation. It is a right under the common law for a landlocked owner to be able to go across his neighbor's land to ingress and egress. If the 5th Amendment was written contemplating this type of a taking, then in light of its language, the landowner whose land was taken for the road would have a right to compensation under the 5th Amendment, which is not and has never been the case.

Second, in the case of the mill laws, its the mill owner, not the government who must pay for the damages of the flooding of the neighbor's land. The laws were of two types. Some required the mill owner to pay compensation, others required no compensation and left the neighboring land owner out of luck. None of them required the government to pay compensation. Why? Because they were land use laws regulating the relations between two existing land owners and not contemplated by or covered by the 5th Amendment. The 5th Amendment is meant to apply when when the government forcibly takes or seizes a private individuals land. In that case, it can only be done for a public good and with compensation. Neither of the examples you give are of the governmetn seizing land.

dead_elvis | July 30, 2005, 2:20am | #

Here's a clue - when there's a controversial debate going on that has resulted in a few dozen Supreme Court decisions over the course of a couple centuries, the guy saying the answer is easy is the dumbest guy in the room.

Your argument here is *exactly* what Julian's "adding one grain of sand cannot create a heap" article was talking about. Another way of saying what you said is "when there's a controversial debate going on that has resulted in the supreme court adding yet another grain of sand, only the dumbest guy in the room would point out that perhaps several grains of sand ago there might have already been a heap." Which I would disagree with.

An analogy I would make is some mathematician smart ass who has to insist that 2+2=5. Just because he can come up with an elaborate proof that proves it so, doesn't mean that someone who instists that 2+2=4 is the "dumbest guy in the room".

jadagul | July 30, 2005, 3:15am | #

But didn't you know, dead_elvis? Two plus two does, equal five—for sufficiently large values of two.

;)

joe | July 30, 2005, 10:51am | #

John,

You are simply factually wrong about the provenance of the Mill Acts - from the beginning, they were conceived as part of eminent domain. In the colonial era, mill owners could flood their neighbors' land without paying compensation. Then, when republican constitutions required just compensation for condemned land, the state legislatures changed the Mill Acts to require the mill owner to pay compensation.

As for the fact that the taken, flooded land was never put in the hands of government, isn't that exactly what's happening in New London, with the NLDC?

Finally, you are misrepresenting the impact of flooding someone's land for a mill pond as being comparable to polluting it. That's not accurate - it is a taking. An even better comparison than the lumber yard above would be a power plant storing mounds of coal on a neighbor's land - that's not just polluting or discharging onto the land, it's using and occpying the land.

joe | July 30, 2005, 11:01am | #

dead elvis,

I am not claiming that anyone who finds fault in some of the ancient decisions is "the dumbest guy in the room." I'm saying, anyone who says the right answer is easy is the "the dumbest guy in the room."

If I were to say that anyone who doesn't recoginze the obvious rightness of the Kelo decision is "the dumbest guy in the room," I'D by "the dumbest guy in the room."

Supernatural Rabbit Scribe | July 30, 2005, 11:05am | #

"Here's a clue - when there's a controversial debate going on that has resulted in a few dozen Supreme Court decisions over the course of a couple centuries, the guy saying the answer is easy is the dumbest guy in the room.

Here's a clue - when there's a controversial debate going on that has resulted in a few dozen theories explaining why some of us frogs have started to feel a bit warmish these last few minutes, the frog outside of this here pot of water saying the answer is easy is the dumbest frog in the room.

joe | July 30, 2005, 11:05am | #

John,

"Lucas and Nolan both concerned areas of regulation never concieved of in the 1790s." Yes, and Berman and Kelo concerned areas of takings never conceived in 1791. Similarly, the first cases that authorized the police to plant a hidden microphone concerned an area of searches that was never conceived of in 1791.

HOWEVER, in all of these situations, the Court was able to look back at the regulations/takings/searches that were available in 1791, consider how the principles of the Bill of Rights were applied to them, and apply them in an analogous fashion to the novel actions.

That's why we don't need to amend the 2nd Amendment every time a new variety of firearm is created.

joe | July 30, 2005, 11:17am | #

John,

"All (the Mill Acts) are saying is that mills are so important that the government is going to excuse their owners from doing something that would normally be prohibited by the common law, namely altering the natural drainage to the detriment of their owner."

The Acts did not just exempt mill owners from responsibilities - they granted them the positive right to occupy, flood, use their neighbors' land. This is why the Acts were conceived as part of, and rewritten to conform with changes to, the government's eminent domain power. You can keep calling it irrelevant, but the overhaul of the states' Mill Acts to conform with the republican requirement that compensation be paid will trip you up every time.

Second, I'd like to draw your attention to this statement, from your post: "All those laws are saying is that mills are so important that..."

This concept of "so important that" their operation justifies intrusions on other people's property rights is the forerunner of the "advances a public purpose" doctrine. Privately owned and operated mills were justified in taking other people's land because their operations advanced an important public interest - not the profits made by the miller, but the economic and community development made possible by having a grinding and sawing services available. You pretty much give the game away on your "the Constitution doesn't say public and private" argument with this admission.

I have to say though, you've put me back on my heels with the private roads argument. I'll have to look into that more.

joe | July 30, 2005, 11:20am | #

"I don't see any reason to think that the founders were contemplating mill laws or rights to ingress and egress under the common law. It seems much more likely that they were worried about the government seizing private property to be used for things like roads and military installations without compensation."

The founders were perfectly aware that the mill acts were in force when they drafted the constitution. Once again, the revision of these acts to require compensation, once the doctrine of just compensation was written into the new states' laws, puts the lie to this line of argument.

Stephen Macklin | July 30, 2005, 6:52pm | #

From: Open Source Amendment Project

For Immediate Release:

The Open Source Amendment Project began in response to the Supreme Court decision in the case Kelo v. New London. The Supreme Court ruled in a 5 - 4 decision that the City of New London, CT could take several properties under eminent domain making the actions goal of increasing tax revenue a Constitutionally valid public use under the Fifth Amendment.

The Project began with a draught amendment posted to the weblog Hold The Mayo (www.nomayo.mu.nu) by its author Stephen R. Macklin. The Project then actively sought input from other bloggers interested in protecting property rights. "There are a lot of very smart people on the internet and writing weblogs," Macklin said. "If that intellectual power can be harnessed we can craft an amendment that will address the damage done to property rights by the Supreme Court in the Kelo decision."

After much debate via weblog comments at Hold The Mayo and other weblogs, and numerous revisions, The Open Source Amendment Project has released its final amendment and a petition to Congress to amend the Constitution.


To:
The President of the United States.
The Vice President of The United States
The Members of the United States Senate
The Members of the United States House of Representatives
The Members of the United States Supreme Court


In the Declaration of Independence the founders of this great nation wrote, "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." They also built into the structure of our government a process by which we the people can seek to change the nature and function of our government without abolishing it and beginning again.

We the undersigned agree with our founders that governments derive their just powers from the consent of the governed and feel that our government has exceeded the bounds of that consent. We believe that the recent decision of the Supreme Court regarding the exercise of eminent domain was reached with complete disregard for the plain language of the Fifth Amendment to the Constitution.

We the people therefore ask that the Constitution of the United States be amended to include the following language:
The right to ownership of property being the cornerstone of liberty, no government, or agency thereof, within these United States shall have the authority to take property from any person, corporation, or organization through exercise of eminent domain for other than a public use without just compensation.
Public use shall be understood to be property the government owns or retains the paramount interest in, and the public has a legal right to use. Public use shall be understood to include property the government owns and maintains as a secure facility. Public use shall not be construed to include economic development or increased tax revenue. Public use of such property shall be maintained for a period of not less than 25 years.
Just compensation shall be the higher of twice the average of the price paid for similar property in the preceding six months, or twice 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.

The Open Source Amendment Project hopes to generate support across the internet to get the amendment to congress. The petition is available online at http://www.petitiononline.com/Property/petition.html

"The process of amending the Constitution is difficult. As it should be. The first hurdle is getting the amendment before Congress. If enough people get behind the effort we should be able to get someone to listen," Macklin said. "There are 535 elected members of congress. I hope there is at least one with and interest in preserving the property rights of individuals. "

Stephen Macklin is an independent, unpaid, writer of social and political commentary. He can be reached for further comment at [e-mail].

joe | July 31, 2005, 12:11pm | #

This language allows the government to take land for other-than-public use (as herein defined) with just compensation. The only effect would be to double the cost of the land acquisition. Said doubling would also apply to land taken for herein-defined public uses like roads and schools, because the same phrase "just compensation" is used.

Was that your intent? Were you trying to forbid using takings to acquire land for a private owner? Because this language doesn't do that.