June 29, 2005
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.Good catch on the fine point of the time requirement, it should be a minimum not a deadline.
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?I think we have that covered by specifying that ”public use shall be limited to property that shall be entirely owned, maintained and operated by government for the direct use of the public.“ In fact I asked the question could we just end it there? Is the following sentence unnecessarily redundant? Or is necessarily to make clear beyond any doubt what the intent of the amendment is?
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.I have been giving this some thought since this comment and I don't seem to be able to get my head around an acceptable standard. While the concept of a punitive payment requirement is appealing in case like Kelo v New London I don't know if it would be in a legitimate use of eminent domain for a legitimate public purpose. I was considering something along the lines of basing just compensation on the average selling price of a similar property per square foot. This would leave some room for manipulation in how a property is classified. I am going to take a crack at this in this revision - I know it is going to need some help.
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.I like point 1 very much. The only problem I have is with the second sentence. Not so much with what it says but simply because so much of what the federal government does is beyond ”the necessary functions of government as enumerated in this Constitution“ that I am not sure how that would work. That however is a bigger fish than we are trying to fry here.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.What I don't know is if/how we deal with neglect, disrepair, abandonment. Under this, or any other market average system I could think of, the owner of a run down hovel would probably wind up getting paid more than what the property is worth while the better property might wind up getting paid less. One could of course argue that this won't be an issue since they aren't likely to come after the rich guy's house anyway, however the relative net worth of the property owner should not entitle one to a lesser justice. This type of system also does not take into account the subjective value of property, particularly a home. It will not justly compensate the owner of a home that has been in the family for multiple generations.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. Life. Liberty. Property.
Posted by: Stephen Macklin at 03:48 PM | Comments (10) | Add Comment
The owner of the rundown fixer-upper should be paid a (higher) average market value because that's what he or she or they will need if they're going to find somewhere else to live. I mean, a family of 5 will be S out of L if they are bought out of their 6-room house but then can only afford to buy a 1-bedroom condo.
But anyone receiving LESS than the specific market value of their property is definately not being justly compensated. So, I suggest that the ousted owners should be paid the higher of either a) the value of their home or b) the average value of similar-sized homes in similar neighborhoods. If that means that the family of 5 can actually afford an upgrade, great!!!
Posted by: Tuning Spork at June 29, 2005 05:55 PM (xs9jx)
Posted by: Stephen Macklin at June 29, 2005 06:22 PM (ics4u)
Not to be a nitpick, but why even reference the fifth amendment at all? To me, it just seems to muddy the text and confuse the issue. Wouldn't it be better to just state something explicit, such as:
"No government body within these United States shall have the authority to take property from one private citizen..."
Much simpler and cleaner, but still gets the same point across. Even better, it's completely explicit - there's no room for misinterpretation of intent there.
Posted by: Russell Newquist at June 30, 2005 06:26 AM (lUNFP)
You have got quite a constructive dialogue going here. Language of any proposed amendment is very important to consider. Having said that, I realize the ‘enumeration clause’ could be a deal breaker for such an amendment with politicians who love creating government programs that go well beyond the enumerated powers found in Article I, Section 8 and additional powers granted to the federal government in certain amendments. If this language was included in the amendment and if the judges reviewing the law were honest, the government could not take property from citizens for a government purpose that was beyond the powers which are already granted in the Constitution (i.e. the Endowment of the Arts or the FDA). If this language was taken out, however; at least the ‘citizen to citizen’ clause would remain and eliminate much of the eminent domain abuse which is rampant in this country.
On Section 2, the reason I believe that such an amendment should set a minimum compensation requirement is that if the law does not specifically set the requirement, a judge will. ‘Just compensation’ is too ambiguous for today’s lawyers with their ability to do some impressive linguistic gymnastics.
The purpose of Section 3 is to remove any doubts in the minds of government lawyers, judges, and bureaucrats about the purpose of eminent domain. The idea is to make it clear that generating revenue through increased property taxes is not reason enough to take someone’s property. Also, you said:
“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?”
My answer to your question would be no. If the IRS (or any other tax collecting government authority) needed to build a facility but needed to invoke eminent domain, even with this amendment, the IRS still would have that ability. Collecting taxes would be a legitimate government activity; generating additional revenue would not.
As to revision 4 of your proposed amendment, I would definitely support it. The main thing we should be looking for in the actual language of the amendment is clarity. We have to think like lawyers; think of the various ways a lawyer would try to twist the language to fit his client’s agenda. The amendment should allow as little wiggle-room as possible in my view.
Posted by: Stephen Littau at June 30, 2005 11:00 AM (7KXbv)
Posted by: Quincy at June 30, 2005 01:03 PM (uDi3q)
Of course a town could then use extremely low assessed values and a very high mil rate.
I am not sure it is possible to craft language that provides zero wiggle room for lawyers and judges. Particularly when the Supreme Court just ignores any language they don't like the actual meaning of. i.e "public use," "congress shall make no law." The only way to prevent abuse of eminent domain entirely would be to ban it outright. A strong amendment will send a strong message but there will always be sleazy lawyers and judges who agree with them.
Posted by: Stephen Macklin at June 30, 2005 01:49 PM (ics4u)
That is what I was trying for in this revision. I picked and average based on the sales in the past year to make it reasonably market sensitive and added the possibility of the last 24 recorded sales in case a type of property hadn't sold or sold often in 12 months.
I based on straight math of price per square foot since the only way to make it just is to remove subjective evaluations.
In a town like mine where I live in a nice middle class home in a nice middle class neighborhood but mid to high seven figure homes are not uncommon and there some into 8 figures, I would make out well if they took my house.
Someone who paid more than the town average would get hurt, though those properties are probably a lot less likely to be threatened by eminent domain.
The slum lord or the person who does nothing to maintain their property would probably wind up getting a large windfall.
This outcome certainly does not qualify as fair, but I think it is just.
Posted by: Stephen Macklin at June 30, 2005 02:03 PM (ics4u)
Also, I would not feel a bit sorry for the government for paying extra. This is the same government that will pay $1,500 for one hammer. The government would have no trouble footing the bill. If there is an appearance of unfairness, we should always err on the side of the individual not the government.
Posted by: Stephen Littau at July 01, 2005 10:30 AM (7KXbv)
My idea of a formula based on recorded sales within broadly defined categories was to create an objective standard that could be applied evenly and predictably to all to all. The results of such a system may not always be fair, but they would be just.
It would certainly be feasible to add a multiplier to the formula. it would remain just in its application, it would discourage the use of eminent domain but it would not be any more "fair".
In fact the biggest problem with the system is it makes prime real-estate available to government at a discount price, since they can get it for the same price per foot as they can get less desirable property.
Posted by: Stephen Macklin at July 01, 2005 01:35 PM (ics4u)
Posted by: Stephen Macklin at July 02, 2005 03:43 AM (ics4u)
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