There were a lot of good comments and questions on Revision 3. I'll go through those first.

Tuning Spork made some excellent excellent points in several comments I've combined:

First off, I'd change “for a period of 50 years” to for a period of not less than 50 years“. That just so's no one thinks that the government is required to sell it back to the either the old owner(s) (or their heirs) or a new private owner when the 50 years has passed.

Property shall not be taken if the purpose of the acquisition is the promotion of economic development for a private business enterprise which business enterprise would own any right, title, or interest in the property so acquired.

Even though the 5th Amendment uses the word ”taken“, it's modified by ”without just compensation“, so I think the word above should be ”purchased“.

And I think that ”Property shall not be taken“ should read ”Private property shall not be purchased by government“.

The bigger problem with the way it's worded is that it outlaws even a voluntary sale of private property to government if the government intends to resell it to a private entity. Perhaps the words ”under duress“ should be added.

Also, you specify only ”a private business enterprise“. What if John Bon Jovi wants to buy your house but you don't want to sell? What if he got the town use eminent domain to force you to sell it to the town who'd then sell it to John Bon Jovi?

And, I can already hear someone arguing in court that ”it's not for 'the promotion of economic development for a private business enterprise', it's for the economic development of the town as a whole!“.

I think if a town purchases property, i.e in a voluntary contract with the seller then by definition the seller has received just compensation. My town has acquired numerous fairly large pieces of land under a voluntary sale with stipulations that they be maintained as open spaces. It was a deal between the town and the seller and if it was a big enough purchase done via referendum.

I am not convinced that eminent domain being used for an individual to take a home from another is or will be an issue, but it will not weaken the amendment to add a reference to a private individual to the last sentence. And Spork is right it needs a little tweaking about who the taking is promoting economic development for.

Justin asked the question:

What if the state decides to let a private enterprise build on its land but still maintains all titles of ownership? Possible loophole?

Qunicy Brings a topic we have not really delved into yet:

I think that ”just compensation“ should also be defined somehow. One idea I've heard is twice the average market price for the neighborhood, since the property is being coercively taken, not sold.

Lastly Stephen Littau offers up an entirely new amendment for our consideration that he has aggressed to his congressman.

Section 1: Eminent domain shall not be construed to allow any government within the United States to take property from one private citizen, corporation, or organization to be given or sold to any other citizen, corporation, or organization for any reason. The Federal government shall only invoke eminent domain in order to carry out the necessary functions of government as enumerated in this Constitution.

Section 2: ‘Just compensation’ shall be defined as no less than double the fair market value of the property being taken for local, State, and Federal governments to carry out their legally prescribed functions.

Section 3: No government within the jurisdiction of the United States shall invoke eminent domain with the purpose of generating additional revenue.

In point 2 I am still not willing to go for punitive compensation. On the assumption that this amendment were actually in effect any taking would be for a legitimate public use. That being the case I think we need to keep the concept of ”just“ in mind for both parties. I am warming to the idea of making the taking agency responsible for all of the property owners costs in litigating to prevent the taking - win or lose. Taking should be permissible for a legitimate public use but it should be discouraged.

In point 3 the question I have is would this prevent a government from building a facility on taken land who's function is to collect taxes and fees? I think a restriction based on ”purpose“ is too weak. And like in the case of this project, I wonder if given other language this part is really necessary.

So now for revision 4

The right to ownership of property being the cornerstone of liberty, the Fifth Amendment to this Constitution's statement that property shall not be taken for public use without just compensation shall not be construed to allow any government within the United States to take property from one private citizen, corporation, or organization to be given or sold to any other citizen, corporation, or organization for any reason. No private citizen, corporation, or organization shall own any right, title, or interest in the property so acquired. Public use shall be limited to property entirely owned, maintained and operated by government for the direct use of the public for a period of not less than 50 years.

Just Compensation shall be higher of the average price paid per square foot of similar property in the preceding twelve months or the average of the previous 24 recorded property transactions. For purposes of this determination property may be classified as residential, commercial, mixed use, or undeveloped land. This classification shall be based on the predominate state of a property for the preceding 12 months.

If someone wants to take a stab at convincing me that twice market average system is more fair or just I'm open to the argument. But take Kelo out of it. Assume the first part of this amendment is in force and convince me.

One thing we need to keep in mind is that nothing in any of this language supersedes due process. Just because we have spelled out the parameters of eminent domain does not mean that a taking - even one that is within all the criteria cannot be fought. Particularly in the court of public opinion. more...

Posted by: Stephen Macklin at 03:48 PM | Comments (10) | Add Comment

When I saw this at Captain's Quarters I thought it had to be a hoax. Funny as hell. But a hoax nonetheless. Then I saw it again at The Volokh Conspiracy So I clicked through to Freestar Media, LLC and checked them out and it seems genuine enough to me. This is one of the best political stunts I have seen in a long time. I'm going to reproduce the entire press release.

For Release Monday, June 27 to New Hampshire media
For Release Tuesday, June 28 to all other media

Weare, New Hampshire (PRWEB) Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court which was supported by Justice Souter himself itself might allow it. A private developer is seeking to use this very law to build a hotel on Souter's land.

Justice Souter's vote in the “Kelo vs. City of New London” decision allows city governments to take land from one private owner and give it to another if the government will generate greater tax revenue or other economic benefits when the land is developed by the new owner.

On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel on 34 Cilley Hill Road. This is the present location of Mr. Souter's home.

Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land.

The proposed development, called “The Lost Liberty Hotel” will feature the “Just Desserts Café” and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America. Instead of a Gideon's Bible each guest will receive a free copy of Ayn Rand's novel “Atlas Shrugged.”

Clements indicated that the hotel must be built on this particular piece of land because it is a unique site being the home of someone largely responsible for destroying property rights for all Americans.

“This is not a prank” said Clements, “The Towne of Weare has five people on the Board of Selectmen. If three of them vote to use the power of eminent domain to take this land from Mr. Souter we can begin our hotel development.”

Clements' plan is to raise investment capital from wealthy pro-liberty investors and draw up architectural plans. These plans would then be used to raise investment capital for the project. Clements hopes that regular customers of the hotel might include supporters of the Institute For Justice and participants in the Free State Project among others.

# # #

Logan Darrow Clements
Freestar Media, LLC

Five justices can eviscerate property rights for all Americans. Three Selectmen in New Hampshire can make it real for one of them. It would be beautiful.

Posted by: Stephen Macklin at 03:34 PM | Comments (3) | Add Comment

1 Road trip!!!

Posted by: Tuning Spork at June 28, 2005 04:48 PM (p1XKy)

2 While it certainly makes sense to me, I don't know that I really want a judge retaliated against for doing what he thought was his job.

Impeach him, instead.

Volokh conspiracy thoughts here

Posted by: owlish at June 29, 2005 05:10 AM (QqkkN)

3 Has anyone looked up the whois information on freestarmedia.com? Just posing the question, to protect those of us who would love to contribute to this cause, but don't want to be suckers for giving money to a possible shyster.

http://whois.sc/freestarmedia.com

Why protect the contact NAME, when they clearly say it is Logan Darrow Clements who is the CEO of this company? The address appears to be the address of namecheap.com, not of Freestar Media. Also, the phone number connects to namecheap.com, which happens to be a Santa Clarita, CA number. I called and the message said "Hi, you've reached namecheap.com ..."

Has anyone actually seen the request for an application submitted to the purported "Chip Meany" the code enforcement officer of the Towne of Weare? Or perhaps, the application? I should like to call and see if this person is really the code enforcement officer of Weare.

hmmm...

Does anyone has any evidence to either back this story up, or debunk it?

Very Skeptical

Posted by: WhoisGuard at July 04, 2005 07:08 AM (8hI3Z)

Hide Comments | Add Comment

Here is a revision of the amendment incorporating some of the language I found earlier at Virginal Postrel's site.

The right to ownership of property being the cornerstone of liberty, the Fifth Amendment to this Constitution's statement that property shall not be taken for public use without just compensation shall be narrowly construed. To protect the right to ownership of property, public use shall be limited to property that shall be entirely owned, maintained and operated by government for the direct use of the public for a period of 50 years. Property shall not be taken if the purpose of the acquisition is the promotion of economic development for a private business enterprise which business enterprise would own any right, title, or interest in the property so acquired.

Posted by: Stephen Macklin at 03:50 PM | Comments (10) | Add Comment

Via Virginal Postrel I found the following language from the charter of Carrillton, TX. I think we can use some of this in this project.

“Provided, however, nothing included above or anywhere in this charter shall authorize the City of Carrollton, or any corporations, agency or entity created by the City, or pursuant to the City's approval and authorization, to institute and exercise the power of eminent domain to acquire private or public property if the purpose of the acquisition is the promotion of economic development for a private business enterprise which business enterprise would own any right, title, or interest in the property so acquired.” (Emphasis added.)

Posted by: Stephen Macklin at 08:09 AM | No Comments | Add Comment

I have been hoping to have a lot more debate and input in term of numbers involved, but I really couldn't have hoped for more in terms of quality.

Check the comments to the original draught.

And the comments on Revision 1

Be sure to take a look at the press release which has so far generated zero interest!

The participants to date have expressed some doubt about some of the language in this revision. I will do my best to explain the intent of each clause. I am still hoping to broaden the input to bring in some aditional perspectives. Someone who knows something about the law would be more than welcome!!

The right to ownership of property being the cornerstone of liberty, the Fifth Amendment to this Constitution's statement that property shall not be taken for public use without just compensation shall be narrowly construed. To protect the right to ownership of property, public use shall be limited to property that shall be entirely owned, maintained and operated by government for the direct use of the public. Government shall not take property for any purpose that results in increased revenue through taxation of any person, private business or other legal entity and shall retain ownership of taken property for a period of 50 years.

In addition to putting the courts on notice that they have little or no leeway in interpreting both this and the Fifth Amendment, this clause establishes the importance of property rights. Property rights are indeed fundamental to the concept of liberty. If you do not have the rights of ownership of the property you paid for, then you do not have the right of ownership of the wages you earned for your labor.

Every man has a property in his own person. This nobody has a right to, but himself. -- John Locke

The phrase “right to ownership of property” is an intentional avoidance of the phrase “right to property.” The last thing we want is some judge ruling the amendment that we have to give everyone some property because they have a right to it. Here it is expressly stated that you have the right of ownership of property. i.e property you paid for. The real meat is in the second phrase stating that taken property must be owned operated and maintained by the taking agency. This taken along with the language narrowly construing the language of the Fifth Amendment should put an end to taking property for Wal-Mart and Pfizer.

Government shall not take property for any purpose that results in increased revenue through taxation of any person, private business or other legal entity and shall retain ownership of taken property for a period of 50 years.

The first half of this statement has given us some trouble. It is essentially a direct response to the Kelo decision stating that increased tax revenue is not a public use. I am not sure we have it right yet, and I am not sure if we even need it. If, based on the language in the previous statement the government taking the property must own operate and maintain the property for direct public use it is not possible to take property and turn it over to another private concern, then the tax issue is moot.

As for the 50 year requirement this is protection against a municipality taking a property, holding it briefly then turning it over to a private developer.

Thanks again to Zendo Deb, Tuning Spork and Justin for their help.

Posted by: Stephen Macklin at 05:54 PM | Comments (6) | Add Comment

1 Finally someone who gets it! The Declaration Of Independence states: Life Liberty and the pursuit of happiness. If you delve into the meaning of happiness, as it was used by Jefferson and other scholars of the time, it means land ownership.

How would you like to find some place you want to live, by a fixer upper and finally have everything just the way you want it only to be re-located for a McDonalds?

This was strike three for the Supreme Court; I just don't understand what has happened for the court to be making these rulings.

Posted by: BThe Uncooperative Blogger at June 26, 2005 07:26 PM (m/Lj/)

2 Now that there is no real ownership of property left in Amerika, I guess that actually makes us serfs of the New World Order.

I call your attention to the 45 GOALS OF THE COMMUNIST PARTY from 1958. In this case, pay close attention to #29 through #33, and #45.

1. U.S. acceptance of co-existence as the only alternative to atomic war.

2. U.S. willingness to capitulate in preference to engaging in atomic war.

3. Develop the illusion that total disarmament by the U.S. would be a demonstration of moral strength.

4. Permit free trade between all nations regardless of Communist domination.

5. Extension of long-term loans to Russia and Soviet satellites.

6. Provide American aid to all nations regardless of Communist domination.

7. Grant recognition of Red China. Admission of Red China to the U.N.

8. Set up East and West Germany as separate states in spite of Khrushchev's promise in 1955 to settle the Germany question by free elections under supervision of the U.N.

9. Prolong the conferences to ban atomic tests, because the U.S. has agreed to suspend tests as long as negotiations are in progress.

10. Allow all Soviet satellites individual representation in the U.N.

11. Promote the U.N. as the only hope for mankind. If its charter is rewritten, demand that it be set up as a one-world government with its own independent armed forces.

12. Resist any attempt to outlaw the Communist Party.

13. Do away with loyalty oaths.

14. Continue giving Russia access to the U.S. Patent Office.

15. Capture one or both political parties.

16. Use technical decisions of the courts to weaken basic American institutions by claiming their activities violate civil rights.

17. Get control of the schools. Use them as transmission belts for socialism and current Communist propaganda. Soften the curriculum. Get control of "teacher" associations. Put the party line in textbooks.

18. Gain control of all student newspapers.

19. Use student riots to foment public protests against programs or organizations which are under Communist attack.

20. Infiltrate the press. Get control of book review assignments, editorial writing, policy-making positions.

21. Gain control of key positions in radio, TV and motion pictures.

22. Continue discrediting American culture by degrading all forms of artistic expression. An American Communist cell was told to "eliminate" all good sculpture from parks and buildings, substitute shapeless, awkward and meaningless forms.

23. Control art critics and directors of museums. "Plan is to promote ugliness, repulsive, meaningless art."

24. Eliminate laws governing obscenity by calling them "censorship" and violation of free speech and free press.

25. Break down cultural standards of morality by promoting pornography and obscenity in books, magazines, motion pictures, radio and TV.

26. Present homosexuality, degeneracy and promiscuity as "normal, natural, healthy."

27. Infiltrate the churches and replace revealed religion with "social" religion. Discredit the Bible and emphasize the need for intellectual maturity which does not need a "religious crutch."

28. Eliminate prayer or any phase of religious expression in the schools on the grounds that it violates the principle of "Separation of Church and State."

29. Discredit the American Constitution by calling it inadequate, old-fashioned, out of step with modern needs, a hindrance to cooperation between nations on a worldwide basis.

30. Discredit the American founding fathers. Present them as selfish aristocrats who had no concern for the "common man."

31. Belittle all forms of American culture and discourage the teaching of American history on the grounds that it was only a minor part of "the big picture." Give emphasis to Russian history since the Communists took over.

32. Support any socialist movement to give centralized control over any part of the culture - education, social agencies, welfare programs, mental health clinics, etc.

33. Eliminate all laws or procedures which interfere with the operation of the Communist apparatus.

34. Eliminate the House Committee on Un-American Activities.

35. Discredit and eventually dismantle the FBI.

36. Infiltrate and gain control of more "unions"!

37. Infiltrate and gain control of "big business"!

38. Transfer some of the powers of arrest from the police to social agencies. Treat all behavioral problems as psychiatric disorders which "no one but psychiatrists" can understand and treat.

39. Dominate the psychiatric profession and use mental health laws as a means of gaining coercive control over those who oppose Communist goals.

40. Discredit the "family" as an institution. Encourage promiscuity and easy divorce.

41. Emphasize the need to raise children away from the "negative" influence of parents. Attribute prejudices, mental blanks and retarding of children to suppressive influence of parents.

42. Create the impression that violence and insurrection are legitimate aspects of the American tradition, that students and special-interest groups should rise up and use "united force" to solve economic, political or social problems.

43. Overthrow all colonial governments before native populations are ready for self-government.

44. Internationalize the PANAMA CANAL.

45. Repeal the Connally Reservation so the U.S. cannot prevent the WORLD COURT from seizing jurisdiction over domestic problems. Give the WORLD COURT jurisdiction over "Nations and Individuals" alike.

*All 45 Goals above are from "The Naked Communist," W. Cleon Skousen, November 1961, pp. 259-262.
TAKE NOTE OF THE HIGHLIGHTS OF THE UNITED NATIONS CHARTER CONVENTION FOLLOWING THE 45 GOALS.

Posted by: Wally Q at June 27, 2005 06:12 AM (D7DRM)

3 Wally Q, I was looking for that list some months ago and didn't find it for some reason. Thanks!

Posted by: Tuning Spork at June 27, 2005 03:52 PM (Xo4No)

4 I was wondering when someone was going to remind us of the talking points of the Communist Agenda as found in "The Naked Communist". I learned that if you just play "the game" and never consider that the opposition has a game plan, an agenda and a stratagy to accomplish that agenda, then you will have lost. We are in the game of our lives and the prize is Liberty for the individual or Slavery to the State.

Posted by: TF Stern at June 27, 2005 04:44 PM (dz3wA)

5 Whew! Reading through that list was like reading the Democratic Party platform - you know, the "special" one that only guys like Hillary are permitted to see. ;-)

Posted by: Libercontrarian at June 27, 2005 06:50 PM (qX/FK)

6 Read the 10 Planks of The Communist Manifesto to discover the truth and learn how to know your enemy...

Karl Marx describes in his communist manifesto, the ten steps necessary to destroy a free enterprise system and replace it with a system of omnipotent government power, so as to effect a communist socialist state. Those ten steps are known as the Ten Planks of The Communist Manifesto… The following brief presents the original ten planks within the Communist Manifesto written by Karl Marx in 1848, along with the American adopted counterpart for each of the planks. From comparison it's clear MOST Americans have by myths, fraud and deception under the color of law by their own politicians in both the Republican and Democratic and parties, been transformed into Communists.

Another thing to remember, Karl Marx in creating the Communist Manifesto designed these planks AS A TEST to determine whether a society has become communist or not. If they are all in effect and in force, then the people ARE practicing communists.

Communism, by any other name is still communism, and is VERY VERY destructive to the individual and to the society!!

The 10 PLANKS stated in the Communist Manifesto and some of their American counterparts are...

1. Abolition of private property and the application of all rents of land to public purposes.
Americans do these with actions such as the 14th Amendment of the U.S. Constitution (186 , and various zoning, school & property taxes. Also the Bureau of Land Management (Zoning laws are the first step to government property ownership)

2. A heavy progressive or graduated income tax.
Americans know this as misapplication of the 16th Amendment of the U.S. Constitution, 1913, The Social Security Act of 1936.; Joint House Resolution 192 of 1933; and various State "income" taxes. We call it "paying your fair share".

3. Abolition of all rights of inheritance.
Americans call it Federal & State estate Tax (1916); or reformed Probate Laws, and limited inheritance via arbitrary inheritance tax statutes.

4. Confiscation of the property of all emigrants and rebels.
Americans call it government seizures, tax liens, Public "law" 99-570 (1986); Executive order 11490, sections 1205, 2002 which gives private land to the Department of Urban Development; the imprisonment of "terrorists" and those who speak out or write against the "government" (1997 Crime/Terrorist Bill); or the IRS confiscation of property without due process. Asset forfeiture laws are used by DEA, IRS, ATF etc...).

5. Centralization of credit in the hands of the state, by means of a national bank with State capital and an exclusive monopoly.
Americans call it the Federal Reserve which is a privately-owned credit/debt system allowed by the Federal Reserve act of 1913. All local banks are members of the Fed system, and are regulated by the Federal Deposit Insurance Corporation (FDIC) another privately-owned corporation. The Federal Reserve Banks issue Fiat Paper Money and practice economically destructive fractional reserve banking.

6. Centralization of the means of communications and transportation in the hands of the State.
Americans call it the Federal Communications Commission (FCC) and Department of Transportation (DOT) mandated through the ICC act of 1887, the Commissions Act of 1934, The Interstate Commerce Commission established in 1938, The Federal Aviation Administration, Federal Communications Commission, and Executive orders 11490, 10999, as well as State mandated driver's licenses and Department of Transportation regulations.

7. Extension of factories and instruments of production owned by the state, the bringing into cultivation of waste lands, and the improvement of the soil generally in accordance with a common plan.
Americans call it corporate capacity, The Desert Entry Act and The Department of Agriculture… Thus read "controlled or subsidized" rather than "owned"… This is easily seen in these as well as the Department of Commerce and Labor, Department of Interior, the Environmental Protection Agency, Bureau of Land Management, Bureau of Reclamation, Bureau of Mines, National Park Service, and the IRS control of business through corporate regulations.

8. Equal liability of all to labor. Establishment of industrial armies, especially for agriculture.
Americans call it Minimum Wage and slave labor like dealing with our Most Favored Nation trade partner; i.e. Communist China. We see it in practice via the Social Security Administration and The Department of Labor. The National debt and inflation caused by the communal bank has caused the need for a two "income" family. Woman in the workplace since the 1920's, the 19th amendment of the U.S. Constitution, the Civil Rights Act of 1964, assorted Socialist Unions, affirmative action, the Federal Public Works Program and of course Executive order 11000.

9. Combination of agriculture with manufacturing industries, gradual abolition of the distinction between town and country, by a more equitable distribution of population over the country.
Americans call it the Planning Reorganization act of 1949 , zoning (Title 17 1910-1990) and Super Corporate Farms, as well as Executive orders 11647, 11731 (ten regions) and Public "law" 89-136. These provide for forced relocations and forced sterilization programs, like in China.

10. Free education for all children in public schools. Abolition of children's factory labor in its present form. Combination of education with industrial production.
Americans are being taxed to support what we call 'public' schools, but are actually "government force-tax-funded schools " Even private schools are government regulated. The purpose is to train the young to work for the communal debt system. We also call it the Department of Education, the NEA and Outcome Based "Education" . These are used so that all children can be indoctrinated and inculcated with the government propaganda, like "majority rules", and "pay your fair share". WHERE are the words "fair share" in the Constitution, Bill of Rights or the Internal Revenue Code (Title 26)?? NO WHERE is "fair share" even suggested !! The philosophical concept of "fair share" comes from the Communist maxim, "From each according to their ability, to each according to their need! This concept is pure socialism. ... America was made the greatest society by its private initiative WORK ETHIC ... Teaching ourselves and others how to "fish" to be self sufficient and produce plenty of EXTRA commodities to if so desired could be shared with others who might be "needy"... Americans have always voluntarily been the MOST generous and charitable society on the planet.

Do changing words, change the end result? ... By using different words, is it all of a sudden OK to ignore or violate the provisions or intent of the Constitution of the united States of America?????

The people (politicians) who believe in the SOCIALISTIC and COMMUNISTIC concepts, especially those who pass more and more laws implementing these slavery ideas, are traitors to their oath of office and to the Constitution of the united States of America... KNOW YOUR ENEMY ...Remove the enemy from within and from among us.

VOTE LIBERTARIAN, the only political party in America that still firmly supports and diligently abides by the Constitution of the united States of America.

None are more hopelessly enslaved, as those who falsely believe they are free....

Posted by: EagleClaw at June 28, 2005 05:33 AM (D7DRM)

Hide Comments | Add Comment

Many who wrote in the immediate aftermath of the Supreme Court's Kelo decision (see here for a sampling of links) have now taken a taken a step back for a more dispassionate analysis. I think a number of them are getting it wrong. (I am not going to name names and link posts. If you go through the sites in my original list of links you will see all of these arguments)

One argument I have read is that a good deal of the outrage stems from the stories if the individuals involved in this case. While I don't doubt that sympathy for the individuals being forced from their homes played some part in the reaction, attributing the outrage to that factor alone misses the point and vastly underestimates the thinking of those who are deeply troubled by this ruling.

This argument is usually offered hand in hand with the observation that takings for purposes of increased tax revenue are nothing new and the court is merely ratifying existing practice and precedent. Therefore the reaction must stem form the particulars of this case. Post hoc ergo proctor hoc. This thinking clearly, and surprisingly, disregards a concept that that has become quite popular in both amateur and professional punditry. The idea of the tipping point. There has been a constant erosion of property rights via regulation and eminent domain. This case represented perhaps the last chance to stop that erosion.

I was aware of the issue of municipalities taking property purely for a tax revenue gain. Clearly the facts of the Kelo case, stripped of the particular stories of the individuals involved, are not unique. It is an unfortunately old and too frequently told story. Many people, myself included, looked at these cases and were angered. But we were not without hope. However naive some think that hope to have been, the issue had not been decided. There was the hope that when it reached the court, tax revenue would be determined not to be public use and the practice would be brought to a halt. Now there is no avenue of appeal. The issue has been decided. The hope has been destroyed. For the average homeowner, there is little or nothing standing in the way of their town seizing their property to give it to someone who can generate more tax revenue.

I always felt our first house was at risk. It was located just over the line that separated a commercial zone from a residential. At the end of our street was an on-ramp for I95. The town is building a new station on the Metro North commuter line about half a mile away and development of the area is already booming. When we moved I put that concern aside. We live in a quiet residential neighborhood that got its start as a 1950's subdivision. A cluster of capes on small lots. Most of the houses have been renovated and expanded, having gone from their original 1200 square foot size to an average of probably 1800 - 2000 sf. The average price for a house on my street is probably about $650,000. (yes I happen to live in one of the most ridiculously expensive parts of the country.) Could the city see an increase in tax revenue by giving the land to a developer who would bulldoze the neighborhood and put up a dozen or so 3500 sf mcmansions that would probably sell for $1 million or better. Definitely. Does this concern me. Definitely. Am I pissed off that I even have to give this a second thought. Definitely.

People are undoubtedly looking at their own lives and their own property and realizing that if the government can stretch the concept of public use to cover just about anything then their rights to their property are at risk. How can anyone misunderstand why this upsets people?

Another argument that quite frankly has me a bit befuddled is centered around limited government/judicial restraint vs big government/judicial activism. Maybe its me, but some people seem to have this so completely backwards. I have read the argument that conservatives who wanted the court to rule against the town of New London were in the unusual position of advocating for judicial activism and bigger government. This argument holds that overturning the evolving practice of takings for tax revenue and the existing precedents would be an act of judicial activism. On the contrary, refusing to expand the definition of “public use” beyond any rational meaning would hardly be judicial activism. And if halting and overturning previous judicial activism is to be considered a bad thing, then what is the point of going through the fight to put originalists on the bench in the first place. Is it enough then for conservatives to say judicial activism stops now, but we wont try to undo any of the damage that has been done? I don't think so.

It is not enough to say we only want to prevent any further erosion of the Constitutional protection of our rights. Stopping where we are is not enough.

A third argument I have read is the Federalist argument. I have read that this is the right decision because what constitutes a “public use” should be determined at the local level. While I am a strong supporter of states rights and think more often than not the federal government interferes in in local matters too much there are some principals that to broad and too important to be left to patchwork of state and local policies. If this were an issue that was to be left to the states, the Fifth Amendment would not include the language in protection of property that it does. The fact that the courts have allowed the protection of property rights to be eroded away to virtually nothing does not change the fact that from the ratification of the Bill of Rights, they were protected Constitutionally.

I have not seen a decent argument yet to the effect that this was a good, or even reasonable decision. This is yet another instance of the government systematically eroding the rights of the individual. We are not people to them, we are revenue sources. And if we are not producing enough they will bring someone who will.

Posted by: Stephen Macklin at 02:48 PM | No Comments | Add Comment

Via The Anti-Idiotarian Rottweiler comes this story from Freeport Texas. I'm only going to quote the lead. Follow the link to get the rest of the angering details.

By THAYER EVANS
Chronicle Correspondent

FREEPORT - With Thursday's Supreme Court decision, Freeport officials instructed attorneys to begin preparing legal documents to seize three pieces of waterfront property along the Old Brazos River from two seafood companies for construction of an $8 million private boat marina.

Posted by: Stephen Macklin at 02:21 PM | No Comments | Add Comment

A press release has been sent in support of the Open Source Amendment Project.

PDF

Posted by: Stephen Macklin at 07:41 AM | Comments (4) | Add Comment

Posted by: Stephen Macklin at 07:02 AM | No Comments | Add Comment

Some great input already. Thanks.

The right to ownership of property being the cornerstone of liberty, the Fifth Amendment to this Constitution's statement that property shall not be taken for public use without just compensation shall be narrowly construed. To protect the right to property, public use shall be limited to property that shall be entirely owned, maintained and operated by government for the direct use of the public. Government shall not take property for any purpose that includes or results in higher taxation and shall retain ownership of taken property for a period of 50 years.

I understand the reasoning for Zendo Deb wanting to put a time requirement on the public use portion. The amendment should anticipate the possibility of a municipality churning a property. Holding it briefly then handing it over to a developer. 99 years might be a bit much I think. 50 years would certainly make eminent domain useless as a business tool. I could be wrong though. It's happened once before! more...

Posted by: Stephen Macklin at 03:29 AM | Comments (14) | Add Comment

I'm not a lawyer and I don't play one on TV so I'm going to need a little help with this. We who would like to regain our property rights have few choices. We can either wait until the balance of the court changes and another case is heard and hell freezes over. Or, we can change the law. Which in this instance, means amending the Constitution.

Property rights are too fundamental to the concept of Liberty to allow them to be diminished at the hands of a mere five people. But since the court can can define “public use” any way five concurring justices would like, we're stuck with their expansive definition unless we can enact our own.

So my proposal is this. An amendment to the Constitution limiting the taking power of government by expressly limiting the scope of “public use” to actual public use. This is where I need your help. Below is my draft of the amendment. I request your comments and input to help refine the language.

Once the amendment is finalized It will take all of us, and all of our readers and all of their readers and all off theirs, and their friends too, to start it on its way to ratification.

The right to property is the cornerstone of liberty. The Fifth Amendment to this Constitution states that property shall not be taken for public use without just compensation. To further protect the right to property, public use shall be limited to property that shall be entirely owned, maintained and operated by government for the direct use of the public.

Zendo Deb is taking a more detailed approach that is definately worth a look. more...

Posted by: Stephen Macklin at 02:40 PM | Comments (4) | Add Comment

Forget flag burning. We need an amendment banning desecration of the Constitution.

Not satisfied with having seriously abridged our First Amendment protected right to free speech by sanctifying the speech restrictions of Campaign Finance Reform the Supreme Court in a split decision has targeted the Fifth Amendment. Specifically the language that reads “nor shall private property be taken for public use, without just compensation.”

You and I no longer own homes. We occupy them. We pay the bank every month for the privilege of living there as long as the government wants to let us.

In the ruling handed down today, the court ruled that the town of New London, CT could exercise eminent domain and take homes and business from citizens and turn the land over to private developers to build a river-front hotel, a health club and offices.

The Court has ruled that “economic development” qualifies as a public use. Economic development for who? For the homeowner who has worked and paid the mortgage month after month? Or for the developer who gets property he couldn't get on the open market because the owners didn't want to sell their homes?

What is to stop a developer from telling the city that if they take your home and give it to them, they can increase its economic value to the city. Not your right to your property. You no longer have that.

As the Supreme Court continues to render the words of the Constitution meaningless, perhaps it getting to be time to take these words to heart again.

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --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. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

More at
Michelle Malkin
Wizbang
Physics Geek
Vodka Pundut
Ranting Right Wing Howler
Yippee-Ki-Yay!
Limburg Letter
Mary Katherine Ham
Professor Bainbridge
Captain's Quarters
Blogs of War
Ramblings Journal
Florida Cracker
Pejmanesque
Instapundit
Arguing With Sign Posts
Nashville Files
No Quarters
Unpartisan
The Right Report
Say Uncle
Accidental Verbosity
SCOTUS Blog
Volokh Conspiracy
John Tabin
The Open End
Secure Liberty
Right Wing News
Myopic Thoughts
Mean Mr. Mustard
Narcissistic Views
Glen Reynolds
Stones Cry Out
Transterrestial Musings
The Indepundit
CaerdroiaRandom Numbers
Darleen's Place
Angry in the Great White North
Another Rovian Conspiracy
Nobody Asked Me, But
Macsmind
TacJammer
RussBlog
Brain Fertilizer
Right Side of the Rainbow
Miss O'Hara
The Age Of Reason
Ramblings' Journal
Rhymes with Right
Lileks - Deadburb USA
Powerline 1
Powerline 2
Michelle Malkin

I'm going to stop adding names to this list and just send you off the Kelo Topic Page at Truth Laid Bear. He's got a very big list of blogs writing on this topic, even though he seems to have missed this one!

Posted by: Stephen Macklin at 09:10 AM | Comments (11) | Add Comment

I want to go on the record as saying that flag burning is offensive. It is offensive not in a deeply personal inspire me to riot kind of way. But it's like being called names on the playground. It is infantile. It is meaningless. If it gives some Islamic nutjob or modern day American hippie a vicarious thrill to watch it burn, so what. I really don't give a damn.

I also want to be on the record as saying that the idea of an amendment to the Constitution empowering the Congress to ban desecration of the flag is one of the most repugnant to come out of Washington in a long time. The flag is a piece of colored cloth. I'm wearing colored cloth right now. But my shirt does not stand for anything. It does not represent anything.

The Flag does. The flag is a visual symbol of the United States of America. What matters about the flag is not the threads. Not the Stars or the Strips. What matters about the flag is the ideas it represents. America is not a piece of cloth. America is an idea, and an ideal. Burn the cloth, shred the cloth, flush the cloth and you do nothing to damage the idea. Nothing to weaken the ideal.

One of the ideas symbolized by the flag is the idea of freedom. This includes the freedom to be an infantile idiot who gets a thrill from burning the flag.

I have enough faith left in the rationality of enough of America to expect this Amendment to go down in flames.

Posted by: Stephen Macklin at 04:25 PM | Comments (3) | Add Comment

Late this afternoon Senator Dick Durbin took to the floor of the Senate and offered this apology for his comments comparing the U.S. military detention center to the Soviet Gulags, Nazi Concentration Camps and Khmer Ruge Killing Fields.

“More than most people, a senator lives by his words ... occasionally words fail us, occasionally we will fail words,” Durbin, D-Ill., said.

“I am sorry if anything I said caused any offense or pain to those who have such bitter memories of the Holocaust, the greatest moral tragedy of our time. Nothing, nothing should ever be said to demean or diminish that moral tragedy.

”I am also sorry if anything I said cast a negative light on our fine men and women in the military ... I never ever intended any disrespect for them. Some may believe that my remarks crossed the line to them I extend my heartfelt apology.“

I cannot help but wonder if Al Jazeera will trumpet the apology as loudly as they broadcast the original statements. What will the Star Tribune will say. But since he didn't retract the statements only apologize for their offensiveness, I doubt either of those sources will take notice.

For me, its way to little and way too late. Durbin must go.

Posted by: Stephen Macklin at 02:58 PM | No Comments | Add Comment

21st Century Paladin tagged me with the movie meme. I'll play along to the extent of answering the questions. I won't tag anyone - unless you feel really strongly that someone should suffer. If so, leave their name in the comments and I'll consider it.

1. Total number of films I own on DVD/video:
I don't have an exact number my wife loves movies. The kids love movies. Let's just say more than two hundred and leave it at that.

2. The last film I bought:
Well, my wife does most of the buying. The last DVD I paid for was the Justice League for my son. Not really a “film” just a collection of campy animated super-heros with and overly dramatic voice over. “Later at the Hall of Justice...” Some day I'll do a whole post on the enormous stupidity of the Wonder Twins. But not today.

3. The last film I watched:
I took my daughter to see Madagascar. It was amusing in the way that all of those kids animated movies with double entendres for the adults is amusing. The jokes were clever - entirely expected and predictable - but clever. I only fell asleep once or twice.

4. Five films that I watch a lot or that mean a lot to me:
I don't think I could say that any film means a lot to me. I don't watch movies for meaning. I watch for entertainment. So there are some I have watched a lot. (note I am excluding any of the kids movies which I have seen and seen and seen and seen.)

1. The Lord of the Rings trilogy. I read the books when I was young. So young that we had an 8-track tape player in our bedroom. I started with The Hobbit then the Trilogy. Throughout the entire course of the books, the same tape was playing in the background. Who Are You by The Who. It was interesting to watch the movies which of course had a much different sound track. When I watch them, I don't hear the Who. But when I hear any song from that album it still invokes images from the stories.

2. Star Wars - all of it even though the first prequels kind of sucked and I haven't seen Sith yet.

3. October Sky. The closest any film has come to having meaning for me.

4. The Matrix. I really only loved the first one. The second two seemed a little too self involved. I've seen the first one at least 10 times. The second and third only three or four each.

5. The Usual Suspects. The whole Verbal Kint/Kaiser Sose twist was great. It is one of the few twists in a plot I didn't see coming. Back in the OS 9 days I had a shut down sound of Kint saying “And like that... he's gone.”

5. Tag five others with this meme
Like I said, I'll take requests.

Posted by: Stephen Macklin at 02:03 PM | No Comments | Add Comment

“I think that this situation absolutely requires a really futile and stupid gesture be done on somebody's part.”

Here's the phone number for Dick Durbin's office. (202) 224-2152.

Cue up the most obnoxious piece of music you can find.

Turn it up real loud.

Dial.

Repeat.

Posted by: Stephen Macklin at 08:08 AM | No Comments | Add Comment

Below is the text my letter to the people representing me in Congress, Senator Lieberman, Senator Dodd, and Representative Shays. I also copied Bill Frist, M.D.

Recently a colleague of yours, and a member of the Democratic Party leadership in the Senate, compared the treatment of illegal combatant terrorists held at Guantanamo Bay Cuba with the atrocities of the Soviet Gulags, Nazi Concentration Camps, and Pol Pot's Killing Fields.

Do you agree that the American Military and the Bush Administration are the moral equivalent of Stalin and the KGB or Pol Pot and the Khmer Ruge?

Do you agree that the actions outlined by Senator Durbin such as the playing of loud music and manipulating the air conditioning to make a prisoner uncomfortable are the moral equivalent of Nazi Germany exterminating six million Jews?

Do you agree with Senator Durbin that such a comparison is not an insult to all who serve in the U.S. Armed Forces and their families, to all who suffered or are connected to the suffering of the world's most barbarically repressive regimes, and to all American's?

If you do not, you should be on the Senate floor or in front of a press microphone at the first possible moment to condemn Senator Durbin's comments in the strongest possible language and demand an apology if not the Senator's resignation.

I would also like to request that you immediately submit to the Senate a resolution censuring Senator Durbin for his comments.

Overwhelmingly anti-American statements such as those made by Senator Durbin cannot be allowed to stand unchallenged. Your failure to do so would be further insult to the people of Connecticut. An insult I and many others will be sure to remind voters of when you next you stand for re-election.

Posted by: Stephen Macklin at 07:56 AM | Comments (1) | Add Comment

When ranking members on one side of a war send out video for news outlets to air that is really nothing more than propaganda what happens? Well if the video comes from an agency of the Bush White House there is a great uproar and the media drips with righteous indignation. When the video is an Al Qaeda snuff film from Iraq, if it gets covered at all, it's just news.

When Al Qaeda captures an enemy, or even a civilian, they release a video of the terrified detainee reading a statement at gunpoint pleading for their lives. The next time the detainee is seen, the hooded guards read the statement for the camera and then their leader invades the detainee's personal space with a knife and cuts his head off.

When the U.S. captures an enemy combatant and review determines that he should be sent to Cuba for interrogation, they make him uncomfortable. First they turn up the AIR CONDITIONING really high and make the detainee cold. Then they have sadistic cruelty to turn the AIR CONDITIONING off and make the detainee hot. Think about that contrast for a moment. One side will cut you head of on camera while you scream in agony, the other side will mess with your AIR CONDITIONING.

AIR CONDITIONING.

The enemy captured four civilian contractors in Falujah. They killed them. They burned and mutilated the bodies and hung the remains from a bridge.

The U.S. left a detainee chained to the floor and and he soiled himself. Then we played loud music and messed with his AIR CONDITIONING.

And who are the bad guys in this comparison? Well according to Illinois Senator Dick Durbin, we are the bad guys. Earlier this week he said

Let me read to you what one FBI agent saw. And I quote from his report:

On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they urinated or defecated on themselves, and had been left there for 18–24 hours or more. On one occasion, the air conditioning had been turned down so far and the temperature was so cold in the room, that the barefooted detainee was shaking with cold. . . . On another occasion, the [air conditioner] had been turned off, making the temperature in the unventilated room well over 100 degrees. The detainee was almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his hair out throughout the night. On another occasion, not only was the temperature unbearably hot, but extremely loud rap music was being played in the room, and had been since the day before, with the detainee chained hand and foot in the fetal position on the tile floor.

If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control, you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime—Pol Pot or others— that had no concern for human beings. Sadly, that is not the case. This was the action of Americans in the treatment of their prisoners.

What I said is you might conclude this was done by one of those repressive regimes.

Dick Durbin compared American personnel messing with a detainee's AIR CONDITIONING the most brutally barbaric regimes in recent history. This man has to go. He needs to be removed from the Senate and it needs to happen before the next election. There is no excuse for the comments he made. There is no excuse to refuse to apologize. And were he to offer an apology now, it would be too little to late.

AIR CONDITIONING.

UPDATE: Michelle Malkin has more and a great collection of links.

Posted by: Stephen Macklin at 04:09 PM | Comments (2) | Add Comment

It seems as though the world is passing me by. At least as far as Hold The Mayo is concerned. I have a mental list of things I want to write about but I don't seem to have the time. I get home from work and its family time until the kids go to bed then I sit down and do work. I'm a long way from being caught up the point where I can take a night off.

So here's a few quick hits in the ten minutes I have.

I've read about the treatment of Gitmo detainees. Loud music, attractive women in your personal space, shaving, removing clothing. That's not torture. You put it the right order and its a date. I'm sure for some of you the being chained to floor part is good too.

Dick Durbin is a dick. In my more cynical moments I'm beginning to believe that you have to be stupid to want to be in the U.S. Senate. Because there seems to be so many idiots who have the job.

Global Warming is still not a man made crisis and there is still no scientific consensus that it is.

Kofi Anan is a crook. That he is the head of the U.N. is kind of appropriate. A corrupt organization should have a corrupt leader.

John Bolton should be confirmed.

The Senate Republicans still seem to have trouble with the concept of leading. (see above.)

I love reading The Bleat. Lileks' charming stories about life with Gnat are so well crafted and enjoyable. I look forward to reading one every morning. But secretly every time I click on the bookmark I'm kind of hoping he is going off on someone or something because he does it so well.

Is not an email campaign to bring down a TV show the metaphorical equivalent of bringing down a skyscraper? Granted, a writer who jumps from a cancelled show usually lands on his feet. But they have a certain poetic symmetry, no?

No. And anyone who tries to make the point deserves to be struck in the face with a thick, wet, cold haddock.

If I have the time and the strength I'll actually write something reasoned and topical. But this all I can muster.

Posted by: Stephen Macklin at 11:58 AM | Comments (4) | Add Comment

Picked up this meme from Gir over at Your Moosey Fate.

Put your iPod list, (or whatever music thingy you use), in alphabetical order, and list the first song for each letter.

I did it straight from iTunes because it has all the same song as the iPod and the program I use to write this blog has a neat little button that automatically enters and formats the currently playing iTunes song. I've been waiting a long for time to have a use for that button.

“Em Elbmuh” from the album “'Jed'” by Goo Goo Dolls
A Life Of Illusion from the album “Billboard Top Album Rock Hits” by Joe Walsh
Baba O'Rielly by The Who
Cajun from the album “New Miserable Experience” by Gin Blossoms
Damn from the album “Yourself Or Someone Like You” by Matchbox Twenty
East St. Louis Toodle-oo from the album “A Decade of Steely Dan” by Steely Dan
F.M. from the album “A Decade of Steely Dan” by Steely Dan
Gettin' In Tune from the album “Who's Next” by The Who
Had Enough from the album “'Jed'” by Goo Goo Dolls
I Alone from the album “Throwing Copper” by Live
James Dean from the album “'Jed'” by Goo Goo Dolls
Keep Your Hands To Yourself from the album “Georgia Satellites” by Georgia Satellites
Lawyers, Guns and Money from the album “A Quiet Normal Life - The Best of Warren Zevon” by Warren Zevon
Magic from the album “The Cars Greatest Hits” by The Cars
need you tonight from the album “Coyote Ugly OST” by inxs
On Every Street from the album “On The Night (LIVE)” by Dire Straits
Peaches by Presidents Of The United State
Q
Real World from the album “Yourself Or Someone Like You” by Matchbox Twenty
Satellite from the album “Remember Two Things [Live]” by Dave Matthews Band
T.B.D. from the album “Throwing Copper” by Live
Uncle Salty from the album “Toys In The Attic” by Aerosmith
Vera from the album “The Wall” by Pink Floyd
Waiting for the Worms from the album “The Wall” by Pink Floyd
X
Yet Another Movie from the album “A Momentary Lapse Of Reason” by Pink Floyd
Z

Posted by: Stephen Macklin at 04:42 PM | Comments (2) | Add Comment