Hold the Mayo

June 25, 2005

Open Source Amendment - Revision 1

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 like the suggestion from Tuning Spork of expressly stating that the Fifth amendment takings clause will be narrowly construed. Justin's suggestion about not creating tax revenue is spot on. I might even go further and say a taking would qualify as a public use only if it resulted in a loss of taxable property. If someone wants to take a stab at wording that I'd be grateful.

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! 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
Caerdroia Random 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
Truth Laid Bear.
Wizbang

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

1 I like it. I also like the clause in the version I quoted that covers sales for tax liens. Today if a property is sold for a tax lien, anything in the price above and beyond the cost of the owed taxes and penalties and interest is retained by the government and not returned to the owner - usually a grieving widow or grieving family... as this is when this tends to be an issue.

Any equity in the property above what is owed to the government realized in the tax sale should revert to the owner of the property.

Posted by: Zendo Deb at June 25, 2005 04:05 AM (S417T)

2 I also think that public use should be explicitly spelled out. Otherwise the "no tax revenue" clause can be defeated by granting a tax wavier to the developer.

It isn't just Wal-Mart. Hydroelectic dams, the railroads, etc. have been built on land stolen from individuals.

Posted by: Zendo Deb at June 25, 2005 04:07 AM (S417T)

3 That is the tricky part. How to word it to actually limit taking to public use. I don't think a laundry list of approved uses would work. It would be an enormous political nightmare. Since it is my intention to take this beyond a mere intellectual exercise the realities of the ratification process need to be considered.

Can you imagine the nightmare of trying to get a list of approved projects through Congress as an amendment let alone through the states!

As for a tax waiver, yes that would be possible however there is also the requirement that the city own, operate and maintain the property for 50 years.

I don't think, give the one in a billion (or two) odds of something like this actually being ratified, that is would be possible to write something sleaze proof. However if it can eliminate 95% of abuse it is a win. Short of that the only other solution is to eliminate the power of eminent domain completely. I don't think that's a realistic idea.

Posted by: Stephen Macklin at June 25, 2005 04:24 AM (ics4u)

4 We can't be too terribly worried about hydroelectric dams or railroads. Those are the sort of things that eminent domain was created for. There's a fine line to walk here; we have to understand that the state WILL reserve the right to take lands for its own use. What we're fighting is this sudden impulse to give it to private developers for purposes such as riverside casinos or hotels or anything along those lines. In those instances, that particular property isn't necessary, it's just preferable. They can put their Wal-Mart anywhere, so why take some unwilling American's home?

Posted by: Justin at June 25, 2005 07:15 AM (tFwvo)

5 I might even go further and say a taking would qualify as a public use only if it resulted in a loss of taxable property.
It seems to me that that's already covered by "...public use shall be limited to property that shall be entirely owned, maintained and operated by government for the direct use of the public." One exception might be when taking land for a highway and then putting up toll booths. But, that's not a "property tax" since the government (public) owns, maintains and operates it, it's a "user fee". The difference is that it's for public use, it's not a privately owned hotel or office building.

Wait a minute, I just realized something. Highways are public property. Toll booths are unConstitutional! We shouldn't have to pay to drive on public roads any more than we should have to pay to walk down the frickin' street!

Hmmm. This could get tricky...

Posted by: Tuning Spork at June 25, 2005 01:20 PM (c4k0Z)

6 Government shall not take property for any purpose that includes or results in higher taxation
I'm imagining several problems there. Howsabout:

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.
1. 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 People.
2. Government shall not take property for any purpose that results in higher taxation for any person, private business or other legal personality other than government and the People shall retain ownership, maintenance and operation of taken property for a period of not less than 25 years.

Posted by: Tuning Spork at June 25, 2005 02:30 PM (c4k0Z)

7 Ick! "2." needs some more work. Working on it...

Posted by: Tuning Spork at June 25, 2005 02:35 PM (c4k0Z)

8 2. Government shall not take property for any purpose that results in revenue-based taxation of any person, private business or other legal personality.
3.
Government shall retain ownership, maintenance and operation of taken property for a period of not less than 25 years.

Posted by: Tuning Spork at June 25, 2005 02:41 PM (c4k0Z)

9 I think the problem with #2 is that it is looking at taxes from the wrong perspective. Probably a result of how the original was written.

This clause is a direct response to the Kelo decision and is meant to eliminate taking purely for increased tax revenue as a public use. It is not about an individuals taxes.

Posted by: Stephen Macklin at June 25, 2005 02:42 PM (ics4u)

10 O.K. so this would have gone better if my comment had gotten here before yours!

How about:

Government shall not take property for any purpose that results in increased revenue through taxation of any person, private business or other legal entity.

Posted by: Stephen Macklin at June 25, 2005 02:47 PM (ics4u)

11 Too foggy. Would taking one's property to build a highway that (with a toll booth) might,
coincidentally, generate revenue for the state be unConstitutional?

Or:
Government shall retain the responsibility of ownership, maintenance and operation of taken property for a period of not less than 25 years.

And I'll be bold and take issue with the phrase "increased revenue". I wanna discard thw word "increased"

Public property should demand no revenue. Ever. Call me a purist but I still believe that my government's property is my own.

Posted by: Tuning Spork at June 25, 2005 04:29 PM (/jxWQ)

12 But it states specifically increased revenue through taxation. i.e. taken property cannot be used in a manner that generates tax revenue.

Posted by: Stephen Macklin at June 25, 2005 04:42 PM (ics4u)

13 I don't know that toll booths are something that really needs to be worried about. I'd also take out the part about the state owning the land for a certain amount of time, and instead put in something mandating that the state shall propose and justify any use of eminent domain, then have a time limit to build it in. I'm not certain how that would be worded, however...

"Government shall not take property for any purpose that results in increased revenue through taxation of any person, private business or other legal entity."

I think that works well for #2. The essence of the issue is there. Anything that is written will be open to interpretation anyway, so I think that overwording will only bring confusion later down the line.

Posted by: Justin at June 26, 2005 06:00 AM (tFwvo)

14 Justin,

One of the reasons for putting a significant time requirement is to prevent a town from taking a property, holding it for a few months than saying "we don't need it after all so were selling to developer X. No developer/business is going to wait 50 years for a property.

Posted by: Stephen Macklin at June 26, 2005 06:04 AM (ics4u)

Hide Comments | Add Comment