July 10, 2005
Open Source Amendment Project - Revision 10
I have given some thought over the course of the day to the comments of Steven Couch and Tom Bowler as well as my own statements that the project will be a success if it is noticed enough to influence state and local decisions regarding eminent domain. The thing is, if the text is not workable as an actual amendment, it never will be heard. Clearly the language regarding ownership and public use needs some revision. Steven Couch is going to take some time off from studying for the bar exam to have a go at it. I don't know the backgrounds of everyone who has contributed but this may be our first input with some legal training behind it!my delicate skin the screen and read the Thomas dissent. This would have been a smart place to start about 9 revisions ago.
Eminent Domain
Property Rights
I also got an excellent suggestion from Brad Warbiany at The Unrepentant Individual. It was one of those V8™ slap to the head why didn't I think of that kind of suggestions.
Also remember, Thomas' dissent to Kelo specifically brought up what he called “common carriers”. These are things like the cable company, water company, etc, which are private entities that are given a monopoly by the government to distribute goods and services. An airport would probably fall directly into that sort of category. And I would think that the support systems of an airport (such as the restaurants/bars/etc in the terminal) would be included in that as well.So while the kids and some friends splashed around in the pool, I arranged the umbrella to keep the sun off
So with the help of Clarence Thomas I had another go at the thing. I took out some language that seemed unnecessary and really only served to thumb our noses at the court for Kelo. I lifted Thomas's definition of public use and added our time requirement. I came very close to eliminating the rhetorical flourish of the opening clause and just starting at “No government....” Any opinions one way or another? I am inclined to delete it based in large part on this citation from the Thomas dissent:
“It cannot be presumed that any clause in the constitution is intended to be without effect”); Myers v. United States, 272 U.S. 52, 151 (1926).We have debated whether or not the opening clause could be construed as conferring an entitlement to property. I don't believe it does, but I do wonder if it adds anything to the protection of property from government power that is the purpose of the amendment.
Revision 10
The right to ownership of property being the cornerstone of liberty, no government or agency of government within these United States shall have the authority to take property from a private citizen, corporation, or organization for other than a public use without just compensation.Revision 10.1Public use shall be understood to be property the government owns, or the public has a legal right to use. Public use of such property shall be maintained for a period of not less than 50 years.
Just compensation shall be higher of the twice average of either the price paid for similar property in the preceding six months or the average of the previous 10 recorded similar property transactions. Compensation paid shall be exempt from taxation in any form by any government within these United States.
No government or agency of government within these United States shall have the authority to take property from a private citizen, corporation, or organization for other than a public use without just compensation.As of now, unless someone has compelling reasons otherwise, I am considering 10.1 the current version.Public use shall be understood to be property the government owns, or the public has a legal right to use. Public use of such property shall be maintained for a period of not less than 50 years.
Just compensation shall be higher of the twice average of either the price paid for similar property in the preceding six months or the average of the previous 10 recorded similar property transactions. Compensation paid shall be exempt from taxation in any form by any government within these United States.
Revision 9kelo
Revision 8
Revision 7
Revision 6
Revision 5
Revision 4
Revision 3
Revision 2
Revision 1
Draught
Eminent Domain
Property Rights
Posted by: Stephen Macklin at 12:40 PM | Comments (16) | Add Comment
1
I can think of reasons for keeping the opening phrase and reasons for dumping it. It's really not neccessary, but it's always nice to mention the word "liberty" every chance you get.
Posted by: Tuning Spork at July 10, 2005 01:28 PM (4zEPh)
2
Yes, liberty is a nice word to mention often, but if it doesn't add to the function of the amendment does it belong?
I don't think it does.
I don't think it does.
Posted by: Stephen Macklin at July 10, 2005 01:46 PM (ics4u)
3
The thing to consider with declarative phrases is the trouble they may cause in 100 years. For example:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
The first part of this sentence is declarative, it doesn't modify the second at all. Jefferson included it to preserve the thinking of the time. It has caused us no end of trouble since then. I would recommend removing the "pretty language" and only including phrases that add value.
Also, something I just thought about based on what's happening in Kelo right now. You need to define the precise time for the starting point for the time periods for determining compensation. Is it when the government files a taking? Is it when the court challenges are final? Or something else?
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
The first part of this sentence is declarative, it doesn't modify the second at all. Jefferson included it to preserve the thinking of the time. It has caused us no end of trouble since then. I would recommend removing the "pretty language" and only including phrases that add value.
Also, something I just thought about based on what's happening in Kelo right now. You need to define the precise time for the starting point for the time periods for determining compensation. Is it when the government files a taking? Is it when the court challenges are final? Or something else?
Posted by: Eric at July 10, 2005 03:31 PM (7pLSk)
4
I like the declarative statement, but agree that such things seem only to cause problems later.
Have you thought of forwarding this on to QandO (http://www.qando.net/default.aspx?tabid=3
to see if you can get any comments from that group? They generally have a great group to discuss an issue.
Have you thought of forwarding this on to QandO (http://www.qando.net/default.aspx?tabid=3
to see if you can get any comments from that group? They generally have a great group to discuss an issue.Posted by: Nylarthotep at July 11, 2005 02:29 AM (dp+Jb)
5
A couple of things occur to me.
1) "Property," as used in the first sentence, could be broadly construed to include any kind of property, not merely real estate. Like, say, money. So I'm all for it. But if it's supposed to mean "land," it should say "land."
2) "Just compensation shall be..." and then the grammar gets a bit hashed.
Maybe it's just me, but I think it'd read better thusly:
"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."
Note the addition of the second "twice." Picky? Sure. But pickiness matters.
1) "Property," as used in the first sentence, could be broadly construed to include any kind of property, not merely real estate. Like, say, money. So I'm all for it. But if it's supposed to mean "land," it should say "land."
2) "Just compensation shall be..." and then the grammar gets a bit hashed.
Maybe it's just me, but I think it'd read better thusly:
"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."
Note the addition of the second "twice." Picky? Sure. But pickiness matters.
Posted by: Russ at July 11, 2005 08:45 PM (utsLN)
6
I think you had it perfect (if there is such a thing) in revision 9.
Posted by: Stephen Littau at July 12, 2005 10:11 AM (7KXbv)
7
Stephen L,
I actually agree except for perhaps the opening phrase for reasons that have been discussed here. I think in a case like this perfect may be possible - depending on what you are measuring against. Revision 9, I think, represented a good effort toward a libertarian ideal. It sought to strictly limit government power and clearly define and separate public and private.
It may well have gone to far in that in direction to where it would never have gained a place in the public debate. Where I think revision 10 is headed is toward a compromise between the libertarian ideal and political reality.
If this is going to have any chance of being nothing more than an exercise in mental masturbation it has to be acceptable in broader circles.
I actually agree except for perhaps the opening phrase for reasons that have been discussed here. I think in a case like this perfect may be possible - depending on what you are measuring against. Revision 9, I think, represented a good effort toward a libertarian ideal. It sought to strictly limit government power and clearly define and separate public and private.
It may well have gone to far in that in direction to where it would never have gained a place in the public debate. Where I think revision 10 is headed is toward a compromise between the libertarian ideal and political reality.
If this is going to have any chance of being nothing more than an exercise in mental masturbation it has to be acceptable in broader circles.
Posted by: Stephen Macklin at July 12, 2005 12:53 PM (ics4u)
8
Russ,
Grammatically speaking, the second "twice" multiplies the latter option by four, not two. The current text is correct.
Grammatically speaking, the second "twice" multiplies the latter option by four, not two. The current text is correct.
Posted by: Tuning Spork at July 13, 2005 04:45 PM (PrPI8)
9
Eric,
I think it's probably clear that the time period would begin at the moment the government assumes ownership; at the "closing". Somebody might try to argue for wigggle room forty-five years later, but I don't think they'd get very far. "Owned, managed, operated," etc, mean just that.
I think it's probably clear that the time period would begin at the moment the government assumes ownership; at the "closing". Somebody might try to argue for wigggle room forty-five years later, but I don't think they'd get very far. "Owned, managed, operated," etc, mean just that.
Posted by: Tuning Spork at July 13, 2005 04:49 PM (PrPI8)
10
Very Very busy catching up from vacation - Revision 11 is coming soon.
Check out Blue State Red and Libertarian Leanings for more input.
Check out Blue State Red and Libertarian Leanings for more input.
Posted by: Stephen Macklin at July 13, 2005 05:14 PM (ics4u)
11
Stephen,
I posted this in the comments of the two bloigs that trackback to this post:
Maybe it'd be easier if we focused on Kelo instead of some grand all-purpose definition of "public use". Why not describe what happened in Kelo -- "Government taking of privately owned property under eminent domain laws for the purpose of selling to another private interest for any reason including economic development" -- and just add "does not qualify as a public use of that land"? It leaves all of the accepted dual-use traditions in place, but bans Kelo-like land grabs, which everyone knows this is all about anyway.
I posted this in the comments of the two bloigs that trackback to this post:
Maybe it'd be easier if we focused on Kelo instead of some grand all-purpose definition of "public use". Why not describe what happened in Kelo -- "Government taking of privately owned property under eminent domain laws for the purpose of selling to another private interest for any reason including economic development" -- and just add "does not qualify as a public use of that land"? It leaves all of the accepted dual-use traditions in place, but bans Kelo-like land grabs, which everyone knows this is all about anyway.
Posted by: Tuning Spork at July 13, 2005 05:37 PM (PrPI8)
12
Tuning Spork wrote: "I think it's probably clear that the time period would begin at the moment the government assumes ownership; at the "closing".
That seems right to me, but courts don't make decisions that way. Which is why we also need the "High School Graduate" amendment.
That seems right to me, but courts don't make decisions that way. Which is why we also need the "High School Graduate" amendment.
Posted by: Eric at July 13, 2005 08:24 PM (4720N)
13
You are ignoring Justice Stevens' remark in Kelo that the problem with abstractions such as "economic development" is that they have no FACTUAL content. Are you guys lawyers? If so, where are your heads? Where are the FACTS in this revision you are proposing to make? It's ridiculous. You could walk an elephant through the loopholes. Wake up.
Let's get down to serious business: what FACT do you want to protect? If it's housing, then you have two choices:
Eminent domain shall not be exercised with respect to housing absent a substantial relation to an important government interest.
OR
Eminent domain shall not be exercised with respect to housing absent narrow tailoring to achieve a compelling government interest.
Bite the bullet: say what it is you want in FACTUAL terms. No more drivel. And by the way, bone up on your knowledge of the Constitution by reading:
Ryskamp, John Henry, "Kelo v. New London: Deciding the First Case Under the New Bill of Rights, With a Model Complaint Establishing a Right to Housing Under the Due Process Clause of the Fifth Amendment " (July 25, 2005). http://ssrn.com/abstract=562521
So far, you really don't know what the hell you're doing.
Let's get down to serious business: what FACT do you want to protect? If it's housing, then you have two choices:
Eminent domain shall not be exercised with respect to housing absent a substantial relation to an important government interest.
OR
Eminent domain shall not be exercised with respect to housing absent narrow tailoring to achieve a compelling government interest.
Bite the bullet: say what it is you want in FACTUAL terms. No more drivel. And by the way, bone up on your knowledge of the Constitution by reading:
Ryskamp, John Henry, "Kelo v. New London: Deciding the First Case Under the New Bill of Rights, With a Model Complaint Establishing a Right to Housing Under the Due Process Clause of the Fifth Amendment " (July 25, 2005). http://ssrn.com/abstract=562521
So far, you really don't know what the hell you're doing.
Posted by: John Ryskamp at July 31, 2005 08:35 AM (PuHU/)
14
Gee John,
Thanks for the wonderfully constructive feedback to an already superceded revision. The insults were most helpful too.
I would invite you to look at later revisions or even the final version in our online petition, but so far I don't care what the hell you do.
Thanks for the wonderfully constructive feedback to an already superceded revision. The insults were most helpful too.
I would invite you to look at later revisions or even the final version in our online petition, but so far I don't care what the hell you do.
Posted by: Stephen Macklin at July 31, 2005 08:53 AM (ics4u)
15
Just my two cents, but I think the declarative statement ("The right to ownership of property being the cornerstone of liberty") might serve a purpose after all.
I recently this article: (http://www.theadvocates.org/freeman/920802.html). In the beginning, Sen. Biden states that the courts traditionally marginalized property rights, this statement would help to entrench the idea that property is a fundamental right on par with any other.
I recently this article: (http://www.theadvocates.org/freeman/920802.html). In the beginning, Sen. Biden states that the courts traditionally marginalized property rights, this statement would help to entrench the idea that property is a fundamental right on par with any other.
Posted by: Jay at August 13, 2005 05:34 AM (ywZa8)
16
OK. Here are my comments on your 10.1. Your amendment will accomplish absolutely nothing--it will STILL not stop a SINGLE eminent domain action.
No government or agency of government within these United States shall have the authority to take property from a private citizen, corporation, or organization for other than a public use without just compensation.
Public use shall be understood to be property the government owns, or the public has a legal right to use.
THIS IS RIDICULOUS. 'THE GOVERNMENT OWNS' IS SIMPLY AN INVITATION FOR THE GOVERNMENT TO RETAIN TITLE AND TURN EFFECTIVE CONTROL OVER TO A PRIVATE PARTY. 'USE' IS TOO VAGUE TO HAVE ANY MEANING WHATSOEVER.
Public use of such property shall be maintained for a period of not less than 50 years.
Just compensation shall be higher of the twice average of either the price paid for similar property in the preceding six months or the average of the previous 10 recorded similar property transactions. Compensation paid shall be exempt from taxation in any form by any government within these United States.
ONCE AGAIN YOU GUYS HAVE DROPPED THE BALL. DO NOT RESTRICT EMINENT DOMAIN WITH RESPECT TO GENERALITIES--ALL THEY DO IS INVITE POLITICIANS TO SUBVERT WHAT YOU WANT.
ASK:
1. WHAT FACT DO YOU WANT TO PROTECT?
2. FROM WHAT DO YOU WANT TO PROTECT THAT FACT?
3. HOW MUCH PROTECTION DO YOU WANT TO GIVE THAT FACT?
DO YOU WANT TO PROTECT HOUSING FROM EMINENT DOMAIN WITH STRICT SCRUTINY? THEN THIS IS HOW:
'EMINENT DOMAIN SHALL NOT BE EXERCISED WITH RESPECT TO HOUSING UNLESS IT IS NARROWLY TAILORED TO ACHIEVE A COMPELLING GOVERNMENT PURPOSE.'
WE ALREADY KNOW WHAT 'NARROWLY TAILORED' AND 'COMPELLING GOVERNMENT PURPOSE' MEAN BECAUSE THEY ARE USED TO JUDGE GOVERNMENT ACTIONS REGARDING FREEDOM OF THE PRESS. UNDER THEM, IT IS VIRTUALLY IMPOSSIBLE FOR THE GOVERNMENT TO CLAIM THE CONDITIONS EXIST TO EXERCISE, FOR EXAMPLE, PRIOR RESTRAINT. NOW THAT IS PROTECTION FOR A FACT.
NEXT TIME, TRY TO CONCENTRATE AND GET IT RIGHT.
No government or agency of government within these United States shall have the authority to take property from a private citizen, corporation, or organization for other than a public use without just compensation.
Public use shall be understood to be property the government owns, or the public has a legal right to use.
THIS IS RIDICULOUS. 'THE GOVERNMENT OWNS' IS SIMPLY AN INVITATION FOR THE GOVERNMENT TO RETAIN TITLE AND TURN EFFECTIVE CONTROL OVER TO A PRIVATE PARTY. 'USE' IS TOO VAGUE TO HAVE ANY MEANING WHATSOEVER.
Public use of such property shall be maintained for a period of not less than 50 years.
Just compensation shall be higher of the twice average of either the price paid for similar property in the preceding six months or the average of the previous 10 recorded similar property transactions. Compensation paid shall be exempt from taxation in any form by any government within these United States.
ONCE AGAIN YOU GUYS HAVE DROPPED THE BALL. DO NOT RESTRICT EMINENT DOMAIN WITH RESPECT TO GENERALITIES--ALL THEY DO IS INVITE POLITICIANS TO SUBVERT WHAT YOU WANT.
ASK:
1. WHAT FACT DO YOU WANT TO PROTECT?
2. FROM WHAT DO YOU WANT TO PROTECT THAT FACT?
3. HOW MUCH PROTECTION DO YOU WANT TO GIVE THAT FACT?
DO YOU WANT TO PROTECT HOUSING FROM EMINENT DOMAIN WITH STRICT SCRUTINY? THEN THIS IS HOW:
'EMINENT DOMAIN SHALL NOT BE EXERCISED WITH RESPECT TO HOUSING UNLESS IT IS NARROWLY TAILORED TO ACHIEVE A COMPELLING GOVERNMENT PURPOSE.'
WE ALREADY KNOW WHAT 'NARROWLY TAILORED' AND 'COMPELLING GOVERNMENT PURPOSE' MEAN BECAUSE THEY ARE USED TO JUDGE GOVERNMENT ACTIONS REGARDING FREEDOM OF THE PRESS. UNDER THEM, IT IS VIRTUALLY IMPOSSIBLE FOR THE GOVERNMENT TO CLAIM THE CONDITIONS EXIST TO EXERCISE, FOR EXAMPLE, PRIOR RESTRAINT. NOW THAT IS PROTECTION FOR A FACT.
NEXT TIME, TRY TO CONCENTRATE AND GET IT RIGHT.
Posted by: John Ryskamp at August 15, 2005 01:39 PM (dwpqz)
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