Where does the Constitution delegate the power to take land for public use?

[The Real Hawkeye]

I am looking for that part of the US Constitution where authority is delegated to the Federal Government to take, by eminent domain, any land for public use, just compensation or no. I, so far, have not found the power delegation. The only mention of this topic is found, from what I can see so far, in the Fifth Amendment, but this is not a delegation of power. It is a statement of what cannot be done by the Federal Government. Limiting statements are not delegations of power. So, you have a prohibition against taking property for public use without just compensation, but no delegation of power to take property for public use with just compensation. According to the Tenth Amendment, therefore, there is no Federal level eminent domain authorized by the US Constitution, unless it exists somewhere in the main body of the Constitution, and I've missed it. It makes no more sense to conclude from the Fifth Amendment that a power is delegated to the Federal Government to take property for public use with just compensation than it would make sense to conclude that it is empowered by that amendment to take property for private use without just compensation. After all, this is not prohibited in the language of the Fifth Amendment.

 

[Baron Holbach4]

Why would the people want to delegate to the government the power of eminent domain?

 

[The Real Hawkeye]

Good point. They wouldn't. Did they? I cannot find it anywhere in the Constitution. If the power was never delegated, why did they bother limiting its exercise for public use to only after just compensation. The Fifth Amendment establishes the limits of eminent domain, but nowhere in the Constitution is the original power of eminent domain delegated to the Federal Government. A power must first exist before it is circumscribed. If I tell you that you may not drive my car any faster than 50 miles an hour, but then I never give you the keys to my car, what's the point in limiting you, while driving my car, to no more than 50 miles an hour? That's what I'm trying to understand.

 

[Pilgrim]

At the time of the writing of the Constitution, it was apparently a recognized fact that government could take private land for public use. The Fifth Amendment clause makes it very clear that power is to be limited.

Likewise, there is nothing in the Constitution that says the courts can invalidate a law by declaring it to be unconstitutional. It was already an accepted fact that was made clear in subsequent rulings of the U.S. Supreme Court.

Pilgrim

 

[The Real Hawkeye]

Pilgrim, that occurred to me also, but, although sovereign States had always possessed the presumptive power of eminent domain, associations of sovereign States (take the UN, for example) had not. The Founders weren't forming a new super state in establishing the Union, but an association of sovereign States, each retaining exclusively to themselves all sovereign powers of Statehood, EXCEPT those delegated to the Federal Government by enumeration in the US Constitution. While (a) appellate court judges have always possessed the presumptive power to nullify laws which conflict with higher laws, and (b) sovereign States have always possessed the presumptive power of eminent domain, (c) associations of sovereign States only possess those sovereign powers delegated by enumeration in their constitutions. It's clearly spelled out in the Tenth Amendment.

PS By your reasoning, the Federal Government is entirely unhampered in taking land for private use, because taking land for private use is not in any way prohibited or circumscribed by the language of the Fifth Amendment. Read it.

 

[Pilgrim]

By your reasoning, the Federal Government is entirely unhampered in taking land for private use, because taking land for private use is not in any way prohibited or circumscribed by the language of the Fifth Amendment. Read it.

Yep. I suppose if the federal government wanted to, it could annex more land from Virginia and Maryland to make a super parking lot for Wal-Mart.

Pilgrim

 

[Molon Labe]

According to this site,

The Fifth Amendment to the Constitution says "nor shall private property be taken for public use, without just compensation." This is a tacit recognition of a preexisting power to take private property for public use, rather than a grant of new power. Eminent domain ''appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty."

In other words, a government has this power because... well... just because. Be a good sheep and stop asking so many questions.

 

[mordechaianiliewicz]

The constitution says that Washington, DC, post offices, military installations and docks, and "needfull buildings" are what the fedgov is allowed to have in terms of real estate. Then in the 5th Amendment, it says the gov shall not be able to take property without just compensation.

There you have it. (Guess that means the vast majority of fedgov land is illegally owned).

 

[Molon Labe]

According to the Supreme Joke of the United States:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=329&invol=230

U.S. Supreme Court
U.S. v. CARMACK, 329 U.S. 230 (1946)
329 U.S. 230

UNITED STATES
v.
CARMACK.
No. 40.

Argued Oct. 18, 1946.
Decided Dec. 9, 1946.

Both in themselves and from the relation of these Acts to the Constitution, we find substantial reason for making their broad language effective to its full constitutional limit. While the federal power of eminent domain is limited to taking property for federal public uses, the question of the existence of a federal public use presents no difficulty here because the constitutional power of Congress to establish post offices is express. 8 [329 U.S. 230, 240] The considerations that made it appropriate for the Constitution to declare that the Constitution of the United States, and the laws of the United States made in pursuance thereof, shall be the supreme law of the land9 make it appropriate to recognize that the power of eminent domain, when exercised by Congress within its constitutional powers, be equally supreme. Mr. Justice Bradley stated this principle clearly, while on circuit, in Stockton v. Baltimore & N.Y.R. Co., C.C., 32 F. 9, 19: 'The argument based upon the doctrine that the states have the eminent domain or highest dominion in the lands comprised within their limits, and that the United States have no dominion in such lands, cannot avail to frustrate the supremacy given by the constitution to the government of the United States in all matters within the scope of its sovereignty. This is not a matter of words, but of things. If it is necessary that the United States government should have an eminent domain still higher than that of the state, in order that it may fully carry out the objects and purposes of the constitution, then it has it. Whatever may be the necessities or conclusions of theoretical law as to eminent domain or anything else, it must be received as a postulate of the constitution that the government of the United States is invested with full and complete power to execute and carry out its purposes.' The Fifth Amendment to the Constitution says 'nor shall private property be taken for public use, without just compensation.' This is a tacit recognition of a preexisting power to take private property for public use than a grant of new power. It imposes on the Federal Government the obligation to pay just compensation when it takes another's property for public use in accordance with the federal sovereign power to appropriate it. Accordingly, when the Federal Government thus takes for a federal public use the independently held and controlled property of a state or of a local subdivision, the Federal Government recognizes its obligation to pay just compensation for it and it is conceded in this case that the Federal Government must pay must compensation for the land condemned.

Allow me to translate this for you: "We believe the 5th Amendment implies that the federal government has this power. It doesn't matter what you think... you're just uneducated commoner. It only matters what we think. Besides, we're federal employees! Do you really think we would pass up an opportunity to grant us more power? So shut up, pay your taxes, and stop asking so many questions. Geeze."

 

[davec]

(Guess that means the vast majority of fedgov land is illegally owned).

Hogwash. The natives got their fair share of small pox blankets and whiskey bottles.

 

[ArmedBear]

As much as I dislike the thought, I can see why it is necessary for an elected government to have the power of eminent domain.

The laws of supply and demand mean that someone who has a small piece of property that happens to be right in the middle of, say, a site for a new international airport runway can force other taxpayers to pay a nearly-infinite price for it, otherwise.

In the case where there is no viable alternative location, there is no competing supplier of that piece of land. Demand for it, however, is very high. That means that the market value of an unimproved $5000 piece of land in that particular location could easily top $10,000,000, under those circumstances. Since this is a public project in a republic, the owner of that land would have an ENORMOUS incentive to influence that project such that it makes purchasing his land for that price, using other taxpayers' money, inevitable.

Hence, we have a guarantee of "just compensation", not a guarantee of a bidding war.

Now I think it's abominable that this power should be used for anything like an office building (Kelo vs. New London), condo project, retail store, etc. "Public use" to just about everyone besides 5 of 9 old judges means something like a large public park, reservoir, highway, port, airport, or military base. But that's a separate issue, much as it pisses me off.

 

[hugh damright]

The Fifth Amendment establishes the limits of eminent domain, but nowhere in the Constitution is the original power of eminent domain delegated to the Federal Government. A power must first exist before it is circumscribed.

I think that is true of the USBOR as a whole ... it is an attempt to limit undelegated powers, which makes little sense.

We are encouraged to believe that the US Constitution was a perfect document, and that the Framers just forgot to add a Bill of Rights, so the States requested a USBOR. But I have read the States' requests, and they considered a BOR to be one issue and modification/amendment of the US Constitution to be another. It appears to me that the States' primary concern was not a USBOR but rather a States' Rights Amendment, our Tenth.

I think that what happened, at some level, is that instead of admitting that the US Constiution failed for lack of a States' Rights Article, it was spun such that the Framers just forgot to add a USBOR. In my view, the Tenth Amendment is the iron fist, and the first nine Amendments are the velvet glove ... or the "lipstick on a pig" analogy also comes to mind.

 

[Art Eatman]

Aside from the implications of the 5th Amendment, probably or possibly the power derives from the first paragraph of Article 1, Section 8: "The Congress shall have Power to...provide for the...general Welfare of the United States..."

The original idea of Eminent domain was "public use", which would fit the general-Welfare phrase.

With the idea of Urban Renewal of the 1950s/1960s, the issue of "public benefit" arose, and the SCOTUS agreed with this terminology, moving away from the more strict limitation of actual public use (roads, railroads, etc.). This was then the precedent for their recent finding.

Art

 

[Molon Labe]

As much as I dislike the thought, I can see why it is necessary for an elected government to have the power of eminent domain.

That's not Hawkeye's point. His point is that the Constitution does not explicitly enumerate this power.

Hawkeye is right, of course. But he is not the first to realize this. As you can see from my post above, the U.S. Supreme Joke realized this during a case in 1947. I can hear them now: "Holy crap! Did anyone notice the Constitution doesn't explicitly state that the federal government has the power to enact eminent domain? Oh man... what are we going to do?"

Well, they had a choice to make. Instead of taking a strict constructionist approach toward this issue (if it doesn't say the government can, then it can't), they took the Hamiltonian approach (if it doesn't say the government can't, then it can).

 

[Art Eatman]

Imagine what highways would look like without eminent domain. Or railroads or oil/gas pipelines. Or water supply systems, including reservoirs as well as water lines. Or sewer lines.

Without eminent domain, those items would either not exist, or certainly be far more expensive to build and use. (Envision an Interstate full of 90-degree corners around recalcitrant landowners' properties. Or your city's water supply dependent on run-of-the-river because a farmer refused to sell land to the would-be reservoir builder.)

Again, as long as it was public USE, problems were relatively few. The corruption enters when it's public BENEFIT, which is what we're seeing today.

Note that the public outcry has had some legislatures speaking to this, with positive results in some states, including Texas. Others, yes, but I don't recall the specific states. In some states, now, your home won't disappear and be replaced by a Sears & Sawbuck parking lot.

As usual, the answer is legislative and local. Statelaws; municipal ordinances.

Art

 

[ArmedBear]

If I have some land that becomes more valuable because Corp Co decides they would love to have a Wal-Mart on it, it's their job to convince me to sell. If I want 500,000/acre, thats my option to ask for it. The government has NO PLACE coming in and telling me that I'm asking too much, then deciding how much the land is worth and making me move off of it.

Agreed, totally. I'm not talking about government power to prevent a market transaction between a buyer and a seller. That is morally wrong, and it was completely wrong in New London, CT, just as I said.

You could have at least read what I wrote before quoting parts of it.

 

[Baron Holbach4]

Bypass Congress and amend the Constitution to outlaw eminent domain.

Stop being paranoid about the states calling for a constitutional convention:

An excerpt from the Heritage Foundation:

Far from being a threat to the Constitution as critics suggest, the convention method of amending is a necessary and integral part of the Constitution. Constitutional conventions of course, should not be taken lightly. Yet exaggerated claims should not dissuade state legislators from considering this vital element of the Constitution to deal with Congress's inability to resolve important national problems[.]

THE FRAMING OF ARTICLE V

Of the 26 amendments to the Constitution, all were proposed by the Congress, none by a convention. This would have surprised the framers of the Constitution, who saw equivalent roles for the Congress and conventions in the amending process. In fact, many preferred the convention method.

http://www.heritage.org/Research/PoliticalPhilosophy/bg637.cfm

 

[ArmedBear]

+1 Art

 

[Vex]

ALso, check out this, quote from from Wikipedia....

http://en.wikipedia.org/wiki/Commerce_clause

Article I, Section 8, Clause 3 of the United States Constitution, known as the Commerce Clause, empowers the United States Congress "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

I truly believe that the commerce clause is the real root of most of our problems, and where the federal government gets alot of the power it really shouldn't have.... such as claiming emminent domain to build a Walmart.

 

[Art Eatman]

"...and among the several States..." which actually means "interstate commerce", not eminent domain issues within one single state. I like my idea better.

, Art

 

[The Real Hawkeye]

I can see why it is necessary for an elected government to have the power of eminent domain.

Well, can you also see the necessity for an elected government to have the power to coin money? If it was the policy of the Founders not to enumerate powers that were "obviously necessary," why did they bother enumerating so many powers that seem "obviously necessary?" Why didn't they just leave it for us to assume the Federal Government has all those powers, like you say they did with eminent domain?

The federal power of eminent domain is limited to taking property for federal public uses

Really? And just how do we know that? The same author who said that also said that we can just assume the Federal Government has powers it needs. What if it needs to take property for private use? There is nothing in the Fifth Amendment which bars the Federal Government from taking property for private use, or even requiring that if it does, it must provide compensation. By this reasoning, the Federal Government has all powers not prohibited to it by the Constitution, i.e., the exact inverse of Federalism, yet this makes no sense at all in light of the Tenth Amendment.

'The argument based upon the doctrine that the states have the eminent domain or highest dominion in the lands comprised within their limits, and that the United States have no dominion in such lands, cannot avail to frustrate the supremacy given by the constitution to the government of the United States in all matters within the scope of its sovereignty.'

Yes, "WITHIN THE SCOPE OF ITS SOVEREIGNTY." But what, precisely, is the scope of its sovereignty? Well, that's laid out in the Tenth Amendment. It has only that degree of sovereignty delegated to it by the States via the US Constitution. All other traits of sovereignty, without exception, are retained by the States and the people respectively.

If it is necessary that the United States government should have an eminent domain still higher than that of the state, in order that it may fully carry out the objects and purposes of the constitution, then it has it.

Well, we can just assume it has all powers it says it needs, then, and there was no point at all in enumerating the powers of the Federal Government. That was just a waste of ink.

The Fifth Amendment to the Constitution says 'nor shall private property be taken for public use, without just compensation.' This is a tacit recognition of a preexisting power to take private property for public use than a grant of new power.

So, this power rested with the Federal Government before the Bill of Rights was ratified? But the Tenth Amendment says it has only those powers delegated and enumerated. The Founders inform us that the Federal Government is not a State, but an association of sovereign States, possessing only those traits of sovereignty delegated to it by the States via enumerated powers in the US Constitution. How does that square with the presumption of sovereign traits not delegated? Can we presume that the UN has the sovereign power of eminent domain? It is a governing body to which we belong, and eminent domain is necessary to all government bodies, you say, so even though we never delegated to it said power within the United States, we must, by that reasoning, accept that it has that power if it feels the need for it in order to fulfill its function as a world governing body.

Aside from the implications of the 5th Amendment, probably or possibly the power derives from the first paragraph of Article 1, Section 8: "The Congress shall have Power to...provide for the...general Welfare of the United States..."

The general welfare of the United States is provided for by the means of constitutional government, i.e., by exercising delegated powers, as is made clear by Article 8 itself, otherwise why bother enumerating powers if the first paragraph of that enumeration was intended to function as a blank check made out by the States to the Federal Government?

 

[The Real Hawkeye]

Imagine what highways would look like without eminent domain. Or railroads or oil/gas pipelines. Or water supply systems, including reservoirs as well as water lines. Or sewer lines.

Nothing bars States from cooperating with one-another in laying down highways. States have the sovereign power of eminent domain, limited only by the approval of their citizens.

 

[Vex]

"...and among the several States..." which actually means "interstate commerce", not eminent domain issues within one single state. I like my idea better.

Walmart is located in multiple states, and their product has to travel across the state lines to get to the store, therefore it falls under interstate commerce.

Pretty crappy, huh?

 

[antarti]

"Holy crap! Did anyone notice the Constitution doesn't explicitly state that the federal government has the power to enact eminent domain? Oh man... what are we going to do?"

Call me crazy, but this would be my (possibly losing) argument:

It's well known that Washington wasn't President in "Wasington DC", in fact only at the end of the Adams Presidency was the area (DC) ready enough for him to live at a bed and breakfast, awaiting the building of the capitol. History also well records also that all the records were moved to DC during this same time (a sum-total of 7 boxes of paper)... so the timeline is without question.

So, if we have a Constitution that lays out what are to be Federal lands, and there is no Federal Government there yet, then people may very well have to be removed, roads built, buildings and post offices raised. The provision is there only pertaining to moving citizens off Federally owned and Constitutionally designated lands.

Farfetched?

 

[tanksoldier]

Eminent Domain is a common law concept that isn't spelled out in the Constitution. Under English common law the sovriegn could take private property almost on a whim. The 5th Ammendment prevents the taking of property _without_compensation_ but doesn't prevent it outright.

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation.