July 16, 2005
The problem is, as our esteemed Attorney General Alberto Gonzales so bluntly put it, “The Constitution is what the Supreme Court says it is.” Gonzales has taken considerable heat for these words particularly since his name has come up as a possible replacement for the retiring Sandra Day O'Conner. The thing is, based on history he's right. What I haven't seen is anything clarifying whether or not he thinks that is the way it should be. Regarldes, how do you write a standard for such a body to follow? How do you craft the language to make it mean what it means and not what the Court wants it to mean?
For example, the language of the First Amendment on the subject of speech is very clear “Congress shalll make no law... abridging freedom of speech.” And yet when congress did precisely that under the guise of campaign finance reform, the Court ruled it Constitutional.
The changes is this revision are mostly focused on the definition of public use. Adding language to clarify and strengthen the general definition taken from the Thomas dissent to Kelo. In fact that was the only section I intended to revise except that I got this comment on Revision 11 from Tuning Spork while I was writing this post.
Also, the more I think about it the more I want to keep that original opening declarative sentence fragment. Since we're finding out that defining public use can be tricky, it might be best to have the reminder that ownership of one's own property is a cornerstone of Liberty. It might help to put the kibosh on some future contorted interpretations of what this amendment is trying to communicate.When he's right he's right. In this case the misapplication of the declarative clause to the second amendment works in out favor. He also found a problem with the language I took from Thomas! I think we got that fixed.I don't think it's akin to the “well-regulated militia” part of the 2nd amendment. Those who misread the 2nd amendment think that the right to keep and bear arms is dependent on the existence of the old-style militias, so in order to argue away property rights they would have to argue that ownership of one's own property is NOT a cornerstone of Liberty. Putting that specific declaration in ends that would-be debate.
Revision 12
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.Tomorrow I will repost the letter that will form the basis of the petition that will go up some time during the week. Anyone interested in being and original signatory of letter is welcome.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.
Revision 11
Revision 10
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Revision 2
Revision 1
Draught
Technorati Tags: Eminent Domain, kelo, Property Rights
Posted by: Stephen Macklin at 01:50 PM | Comments (4) | Add Comment
Just to be crystal clear perhaps:
The term "public use" shall not be construed to include economic development or increased tax revenue.
Posted by: Tuning Spork at July 16, 2005 02:35 PM (GCHV1)
In other words we don't want them to use other words. If they don't call it public use but public benefit can development and taxes qualify. I think given the nature of the Court it could.
By defining the concept no matter what they call it the restriction applies.
Posted by: Stephen Macklin at July 16, 2005 02:50 PM (ics4u)
Why at least 25 years? That imposes a rather inflexible constraint that would prevent property from being transferred back to the private sector. Is the intent to force the government to do better long-term planning or is it to prevent corruption by disallowing the government to use itself as a middleman to transfer property between private individuals?
Posted by: Ben Eng at July 25, 2005 05:44 AM (wfgVW)
That clause is meant to be restrictive and in earlier revisions it was set at 50 years.
The answer to both of your questions is yes. The time requirement will force government to be very careful that they are going to need that property since essentially under the rest of the amendment they are removing it from thier tax base.
It is also to prevent a government from taking a property then changing their mind six months later and selling it Wal-Mart. No matter how many friends in high places a developer has, they will not llikely want to wait 25 years for a property.
Posted by: Stephen Macklin at July 25, 2005 07:31 AM (UquFN)
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