9 states say eminent domain unconstitutional!


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cpileri
June 24, 2005, 10:10 PM
According to this:
"http://www.reason.com/interviews/bullock.shtml
What's important to point out is that even the majority admitted that state courts are free to interpret their own provisions in a manner that's more protective of property rights. Thankfully, every state Constitution has prohibitions against private takings and a requirement that takings be for public use. And, only six states have held that economic development condemnations are Constitutional. Nine have held that they are not. And most states have not addressed it. "

So, which ones are they?

That significantly narrows down the choice of retirement locales?

C-

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pax
June 24, 2005, 10:13 PM
Washington is on the good-guy list.

pax

2nd Amendment
June 24, 2005, 11:03 PM
That's nice. This keeps coming up. So what? Deep Pockets Corporation unleashes their flock of highly amoral Assault Lawyers and the state provisions fall to the extant SCOTUS decision, which is the actual law of the land now. The end and, hey, thx for playing. :(

BeLikeTrey
June 25, 2005, 03:13 PM
Notice strong 2nd amendment states don't have this problem so much? anyone? anyone?

Bueler? Bueler?

Brett Bellmore
June 25, 2005, 03:56 PM
Every state has something like the 5th amendment in their state constitution, and as god-awful as this ruling was, state courts are perfectly free to read their state 5th amendment analogs as prohibiting this sort of abuse, even if they're identically worded to the federal amendment.

And this awful ruling doesn't change that.

That's why, for instance, the federal courts can refuse to admit that the 2nd guarantees an individual right, and yet a state court like Vermont's can enforce the same right at the state level.

State bills of rights operate as additional constraints on state governments, beyond what those parts of the Bill of Rights the courts admit are "incorporated" do.

HonorsDaddy
June 25, 2005, 04:07 PM
this problem will rear its ugly head when a state interprets it properly and the developer appeals. Once it hits the federal court, the SCOTUS precedent is brought up, it applies, and faster than you can say "Sorry ma'am, its not your house anymore", granny is out on the street.

Brett Bellmore
June 25, 2005, 04:16 PM
No, the situation isn't that bad, yet. If an eminent domain action was struck down as unconstitutional under the state constitution, then even if it goes into federal court for some reason, the state SC's reading of that state constitution IS still binding.

This is because the confiscation is being done by a state government, which has to obey BOTH constitutions, and can't do something if either says it's prohibited.

For instance, the majority cited the Poletown ruling here in Michigan to defend their point of view, despite the fact that it was overturned in the state supreme court last year. We here in Michigan are still, thanks to that ruling last year, protected from that abuse for now, because it was based on the state constitution.

Now, I won't deny that there's some potential for the federal courts to eventually start over-riding state constitutions on this matter, but it would represent yet another increment of abuse, and is not implied by the ruling we're discussing.

So you can relax about that prospect for a couple of years, at least.

HonorsDaddy
June 25, 2005, 04:24 PM
Didnt Kelo involve the state court saying that the property couldnt be taken?

Brett Bellmore
June 25, 2005, 04:48 PM
Under the federal 5th amendment, yes.

Jeeper
June 25, 2005, 07:08 PM
Slightly misleading topic title.

dolanp
June 25, 2005, 07:28 PM
Well some Texas lawmakers were talking about amending our state constitution to prevent this new ruling from allowing it to happen here, so I guess that means for the moment we are not protected against it.

yinyangdc
June 25, 2005, 08:51 PM
Texas better enact it quickly, before Freeport acts.

2nd Amendment
June 25, 2005, 09:24 PM
I've read more. I've asked a couple attorneys... All it takes to void any state opposition is one well handled suit. Like I said, this is a polite fiction and the Kelo decision is, in fact, the last word. While it may indeed take a couple years for another suit to wend its way thru the court and standardize it across the board it will happen, just as quickjly as the assault lawyers can drive it thru.

Brett Bellmore
June 25, 2005, 09:57 PM
To quote myself, (A bad habit, I suppose!)

So you can relax about that prospect for a couple of years, at least.

That's more or less what I meant; State protection will serve until the Court decides, in another case, that it should be over-ridden. We've got a window of a couple of years to do something about this problem, before the other shoe falls. I think the only real solution is a constitutional amendment.

JB in SC
June 25, 2005, 10:51 PM
Elected city and county officials that pursue this type of land grab should be dealt with at the next election. In no uncertain terms they should understand that they will be voted out of office.

Augustus
June 25, 2005, 11:12 PM
They have been using it for awhile in Texas. Look at Texas Motor Speedway and in Arlington for Jerrys new stadium.

Don Gwinn
June 26, 2005, 12:25 AM
I'm not trying to be totally depressed, and I don't have any better ideas, but honestly, what's the use of an Amendment?

The 5th Amendment is already pretty clear. These five justices literally decided to read the words "public use" as "public or private use, as long as you can imagine some public benefit of some kind." I'm not exaggerating, that explanation is there in the oral arguments and in the decision.

So we amend the Constitution and put in an explicit prohibition on ED takings for private use--so what? Won't they simply redefine the terms in that amendment too? This is like arguing with God. You tell Him the sky is blue, He tells you it's bright yellow. You insist that it's blue. He tells you to look up at the sky, and what do you know? It IS bright yellow!
Of course it is, because he can make it whatever color he wants. Who can stop him?

Truly, I'm not trying to be a jerk, here. I just got done explaining this to my wife, who was paying no attention until I told her about it, and between the two of us we got pretty worked up about it.

Logistics
June 26, 2005, 12:47 AM
>>>You insist that it's blue. He tells you to look up at the sky, and what do you know? It IS bright yellow!
Of course it is, because he can make it whatever color he wants. Who can stop him?<<<

Thats because 2 + 2 is starting to equal 5.... :uhoh:

Brett Bellmore
June 26, 2005, 01:04 AM
Yeah, but generally speaking, it takes them a while to work their way up to saying that black is white. I mean, look at this case; Once they started the erosion, they took decades to reach the point they achieved this week.

Ratify a very flatly worded, utterly clear amendment, and it will indeed have it's effect, for at least a while. And then we'll do it all over again. Eternal vigilance, and all that: You can't expect to win your liberty forever from a one time effort.

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