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

[The Real Hawkeye]

Does anyone remember Franklin's response when he was asked what kind of government they had created?

A republic, madam, if you can keep it.

 

[hugh damright]

Gee hugh, you don't think it might be a little overbroad to say that any Supreme Court decision handed down in 1876 was intended to undo the U.S. Constitution?

Actually, I transposed a couple of numbers and was thinking of 1867 ... and I was thinking of laws coming from the Legislative rather than the Judicial ... so I was thinking of our 1867 Congress and despotism.

I guess that depends on whether you want to advance your goal or just talk about it in righteous tones while failing to move it forward an inch. If massive swaths of the population don't agree with your interpretation of the Constitution, then I would say that starting off with an interpretation that even those who are regarded as your closest allies don't agree with is probably going to present a problem.

I am not sure exactly what you mean, what it is I said that you think is "righteous tones" ... but I am not the type of person who forms a view of the US Constitution by taking a poll. The thing is, massive swaths of the population do not desire, nor even believe in, the form of government which the US Constitution frames: limited federal government. I do not believe it is only my personal interpretation that the US Constitution is a compact between the States which delegates limited powers.

Which all goes to the real issue here - who gets to interpret the Constitution?

I think we first have to get to the issue of what the Constitution is. I see it as a compact between the States, and I believe that free government is consentual ... so I think the US can interpret the US Constitution so long as Virginia is free to secede when the US interprets our compact to be something other than what we understood it to be. Otherwise, if the US Government can interpret/reconstruct the US Constitution against the will of the people and the States, and there is no right to secession ... aren't we back to some kind of monarchy?

[You were not to vote for US President or US Senator] but you were to vote for your US House Representative, who had the power to tax you.

Got me there. But of course the House was the exception, the democratic branch. Today democracy has run rampant and we vote directly for our US Congressman, our US Senators, and our US President ... of course we still have some form of Electoral College, but many people just assume that a popular vote would be the proper method (because they think the US is a State and the President is the Governor of the State of America)

Does anyone remember Franklin's response when he was asked what kind of government they had create.

I believe that Franklin said we have a Republic. And I believe that Madison said that the States were simple republics while the US was a compound republic which embraces the separation of State and federal powers.

Of course, Franklin may have seen the US as a simple republic i.e. as a State ... didn't Franklin want us to be the United Territories rather than the United States?

 

[Bartholomew Roberts]

The Great Depression was not a result of a lack of central planning. It was an intentionally manipulated outcome made possible only by the existence of the Federal Reserve Bank (i.e., central planning), and its power to manipulate interest rates.

Central planning may not be the best way to describe it; but using the power of the federal government to insure one set of rules for commercial and economical purposes does contribute to greater economic efficiencies than a system that reserves more power to the states. That is an issue that has to be addressed in the modern world if you want to increase state sovereignty - you have to show how it does not hurt (and preferably helps) the economy.

I am not sure exactly what you mean, what it is I said that you think is "righteous tones" ... but I am not the type of person who forms a view of the US Constitution by taking a poll.

I apologize for painting a little too broadly there.

I think we first have to get to the issue of what the Constitution is.

How do we get to the issue of what the Constitution is if we don't know who determines that? Here in a thread among fairly likeminded people we have several competing interpretations of what the Constitution is? So how do we know which one we will use? If I disagree with your interpetation, then what?

I see it as a compact between the States, and I believe that free government is consentual ... so I think the US can interpret the US Constitution so long as Virginia is free to secede when the US interprets our compact to be something other than what we understood it to be.

Well, that view was pretty much extinguished in 1865. If you are going to tell people that the Constitution means this interpretation that we stopped using 141 years ago, you will need a compelling argument that wins the majority. You may not think it should work that way; but that is the way it does work.

 

[hugh damright]

If you are going to tell people that the Constitution means this interpretation that we stopped using 141 years ago, you will need a compelling argument that wins the majority. You may not think it should work that way; but that is the way it does work.

Are you telling me that the way the US Constitution works is that it is subordinate to the majority, because that seems backwards to me.

You seem to think that in 1865 the US Constitution became something different than it was in 1864. I know there was the 13th Amendment, but the Constitution was not amended to declare that the US is no longer a limited federal government, nor was it amended to declare that no State can secede. Is it your assertion that the US Constitution somehow ceased to frame a limited federal government in 1865? I think it makes more sense to say that the US Government strayed from the US Constitution.

If you were to say that the US Flag represented one thing in 1860 and another in 1865, then I could see the point ... but I do not think a written Constitution can be viewed in that way.

 

[publius]

But the power to coin money certainly would imply the power to hire mint workers, and to purchase coining machinery, and a building in which to house the operation.

We agree about that, Hawkeye, but I see the power of eminent domain as necessary and proper to building a post road. It was mentioned earlier that the power to acquire land on behalf of the public must include the power of eminent domain.

I never addressed your two plans, which were basically to hire agents to purchase needed land on the market, or to make the States provide the needed land to the Feds.

The first won't work because you can't acquire a meaningful stripe of land for the government and keep it secret. The truth will be learned, and then those lucky folks who have not yet sold will have the rest of the public over a barrel.

The second won't work for the same reason the Articles of Confederation government failed. That government had the power to demand that the sovereign States pay taxes. Well, demand they did, and pay they didn't. Then what? (edit: I hear we are behind on our UN dues. What are they going to do? I don't get behind on my IRS dues. How about you?) We demand a post road through your State. Give us land. The whole project depends on the timely cooperation of the States, which makes a mockery of the concept of federal sovereignty in this area. The States might refuse, or provide land which is far less acceptable to the US government, but is politically more palatable in the State in question, or they might just drag their feet in the whole process forever.

In addition to being unworkable, it seems to me from evidence Bart posted about legal cases, and from the fact that federal eminent domain legislation appears around the year 1800 in the General Index image I posted, that the people who built the government set right to work using eminent domain as a means of carrying out delegated powers.

A republic, madam, if you can keep it.

That suggests a State to me.

Got me there. But of course the House was the exception, the democratic branch. Today democracy has run rampant

It seems to me I "got" you on a pretty important point. We agree that it has somewhat run amock in modern times, but getting back to the intended structure for a moment, a government for which you vote for half of the main legislative body directly, and which can tax you directly, and which can declare war on your behalf, is a bit more than an association by treaty such as the UN. It's a Republic, a State, sovereign within its sphere. Speaking of which...

I get a free pass for quoting Ultra Federalists, since I'm named publius, so here's some Hamilton for you guys:

If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a goverment, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.

Let me reword something Bart Roberts already pointed out to you, Hawk and Hugh. You really could not find a more friendly audience for your arguments here. I'm in general agreement with your points of view on many things, and I have more knowledge than your average American about things like the Federalist Papers. If you can't convince me on this one, you're going to have real trouble branching out to people who are more inclined to disagree with you. (But keep trying, I'm having fun! )

 

[The Real Hawkeye]

If you can't convince me on this one, you're going to have real trouble branching out to people who are more inclined to disagree with you.

I am not entirely out of touch with reality. 98% of people wouldn't have the slightest idea what you, I or Hugh are talk about. Of the remainder who would, 98% would probably lack sufficient background knowledge to fully follow what we are saying, let alone agree with Hugh and I. Then there is a tiny fraction of a percentage that fully follows but which is made up of those who are dispositionally on the other side of this issue, i.e., they prefer living under a super state central government based in DC, and fear giving the people control of their local laws and government. So, no, I am under no illusion that I am going to convert the world to my way of thinking.

 

[hugh damright]

It seems to me I "got" you on a pretty important point. We agree that it has somewhat run amock in modern times, but getting back to the intended structure for a moment, a government for which you vote for half of the main legislative body directly, and which can tax you directly, and which can declare war on your behalf, is a bit more than an association by treaty such as the UN. It's a Republic, a State, sovereign within its sphere.

The way I understand it, the US is, at its foundation, a compact between the States ... and then upon this federal foundation resides a superstructure which is part federal and part national. I do not believe the US is a Confederacy nor a State, but more like a hybrid between the two. However, at its foundation, it is a compact between the States. That is what I understand "federal" to mean ... I often refer to Webster's 1828 dictionary for various reasons (one being that Webster was a federalist and so I am not seeking something biased my way) ... here is Webster's definition of "federal" and "compact":

FEDERAL - Consisting in a compact between parties, particularly and chiefly between states or nations; founded on alliance by contract or mutual agreement; as a federal government, such as that of the United States.

COMPACT - An agreement; a contract between parties; a word that may be applied, in a general sense, to any covenant or contract between individuals; but it is more generally applied to agreements between nations and states, as treaties and confederacies. So the constitution of the United States is a political contract between the States; a national compact. Or the word is applied to the agreement of the individuals of a community.

I agree that the US is sovereign within its sphere, but I do not agree that the US is a "State". I believe that a State government and a limited federal government are two distinct forms of government which we should not confuse. A State government is a perfect or complete government which has broad and general powers, whereas the US is limited to delegated powers. In a free State, the people form a sovereign body, whereas in the US the people form fifty sovereign bodies ... the people of the US do not do anything directly, they do not have a popular vote ever, not for a representative, not as a national referendum, not to amend the US Constitution, not to declare war.

If you can't convince me on this one, you're going to have real trouble branching out to people who are moreinclined to disagree with you. (But keep trying, I'm having fun)

Just what is it that I am supposed to be convincing you of .. that the US Constitution frames a limited federal government, which is different from a State government?

And I've got to say it ... isn't "The United States" a funny name for a State??

 

[publius]

LOL! That's a good one, Hugh.

The whole State argument is a side issue raised by the general question of the power of eminent domain. I just don't see that one as stepping outside the boundaries drawn in the Constitution, because it is necessary to some delegated powers.

 

[hugh damright]

The whole State argument is a side issue raised by the general question of the power of eminent domain. I just don't see that one as stepping outside the boundaries drawn in the Constitution, because it is necessary to some delegated powers.

I was under the impression that we had a consensus that the US has a power to take private property if it is necessary for them to do so in order to perform their delegated duties, but that they do not have a broad/general power to confiscate private property for the common good. In other words, the US is not delegated the general power of eminent domain, but they do have a limited implied power of eminent domain as an aspect of their delegated powers.

 

[Al Norris]

but they do have a limited implied power of eminent domain as an aspect of their delegated powers.

Thank you hugh!

Bart, that's a definition I can accept (re: our ealier disagreement over implied powers). The delegated powers are few. Implied powers are limited to what is necessary for the implimentation the delegated power.

 

[Bartholomew Roberts]

Bart, that's a definition I can accept (re: our ealier disagreement over implied powers). The delegated powers are few. Implied powers are limited to what is necessary for the implimentation the delegated power.

I think we are all substantially in agreement on that point. There is no point to federalism if the implied powers are not limited to those necessary to carry out the enumerated powers.

 

[antarti]

Both the more moderate Federalists and the Anti-Federalists were more than happy to pass and execute new laws based on the implied powers doctrine when they got their turn at the wheel (i.e. the debate over the national bank)

When I see people who did passionately believe in only express powers being granted by the Constitution accept the implied powers doctrine in circumstances like the national bank,

Can you give me some examples that stick out, or should I just look up the votes? 1790-1804 is a period I spent considerable time studying in graduate school, so I have the necessary materials, and I'd like to revisit this from the historical perspective. I can answer for Jefferson/Burr off the top of my head, but probably not for everybody you have in mind without a little digging.

In other words, the US is not delegated the general power of eminent domain, but they do have a limited implied power of eminent domain as an aspect of their delegated powers.

I think that's got it nailed right there. I might tweak it to "only as an aspect of their delegated power".

In a free State, the people form a sovereign body, whereas in the US the people form fifty sovereign bodies ... the people of the US do not do anything directly, they do not have a popular vote ever, not for a representative, not as a national referendum, not to amend the US Constitution, not to declare war.

I agree with you here, and in another post where somebody mentioned 1865 as being the end of it all, but I would add 1868 too:

Amendment XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

[publius]

I was under the impression that we had a consensus that the US has a power to take private property if it is necessary for them to do so in order to perform their delegated duties, but that they do not have a broad/general power to confiscate private property for the common good. In other words, the US is not delegated the general power of eminent domain, but they do have a limited implied power of eminent domain as an aspect of their delegated powers.

That's my view, but it's not consistent with post 1 of this thread.

According to the Tenth Amendment, therefore, there is no Federal level eminent domain authorized by the US Constitution

 

[The Real Hawkeye]

Originally Posted by Hugh
I was under the impression that we had a consensus that the US has a power to take private property if it is necessary for them to do so in order to perform their delegated duties, but that they do not have a broad/general power to confiscate private property for the common good. In other words, the US is not delegated the general power of eminent domain, but they do have a limited implied power of eminent domain as an aspect of their delegated powers.

That's my view, but it's not consistent with post 1 of this thread.

Originally Posted by TRH
According to the Tenth Amendment, therefore, there is no Federal level eminent domain authorized by the US Constitution.

Although eminent domain is not a power delegated to the Federal Government, a limited-usage equivalent is, i.e., to "make laws necessary and proper for carrying into execution the foregoing powers." This delegated power, combined with the Supremacy Clause, gives the Federal Government the ability, by the passage and enforcement of a law, to acquire land which is necessary and proper for the execution of "the foregoing [enumerated] powers." It is not accomplished by way of some implied Federal power of eminent domain, but rather by way of both the Supremacy and the Necessary and Proper Clauses which, taken in tandem, authorize the Federal Government to, in this narrow respect, enforce its will on the States, not individual land owners, to provide the land it requires to execute its other delegated powers, i.e., "the foregoing [enumerated] powers."

Keep in mind the wording of the Necessary and Proper Clause. It is an empowerment to make laws necessary and proper to executing the foregoing powers. It is not an empowerment to assume new powers on an as needed basis. That's a critical distinction. The only implied powers are those which are subsumable directly beneath a delegated power. For example, The power to raise armies implies also the power to establish and enforce laws with that aim in mind. No new power is discovered there, only the actual component parts of the delegated power.

 

[The Real Hawkeye]

Publius said: That suggests a State to me.

Really? The UN is set up in the form of a republic. Is that a State too?

 

[Bartholomew Roberts]

It is not accomplished by way of some implied Federal power of eminent domain, but rather by way of both the Supremacy and the Necessary and Proper Clauses which, taken in tandem, authorize the Federal Government to, in this narrow respect, enforce its will on the States, not individual land owners

Why do you feel there is no authorization in the Constitution for the federal government to directly affect individuals in this circumstance?

Aside from the fact that we are now arguing "How things should be done" instead of "How things are done", what in the Constitution makes you think that individuals cannot be directly affected if the Feds are justifiably acting under the necessary and proper clause?

 

[The Real Hawkeye]

Why do you feel there is no authorization in the Constitution for the federal government to directly affect individuals in this circumstance?

Because, in the circumstance under discussion, that would amount to an exercise of eminent domain by the Federal Government, which is a power never delegated to it, although it is empowered to require, by the passage of a law, that States, which do possess said sovereign power, exercise same in accordance with the requirements of the Supremacy Clause of the US Constitution, when such is necessary and proper for the carrying into execution an enumerated power of the Federal Government.

Aside from the fact that we are now arguing "How things should be done" instead of "How things are done", what in the Constitution makes you think that individuals cannot be directly affected if the Feds are justifiably acting under the necessary and proper clause?

I never said that.

PS Nice try, though. I respect your cunning.

 

[Bartholomew Roberts]

If the Feds have the power to use eminent domain as a necessary and proper means to pursue a goal supporting an enumerated power, then they already have all the justification they need under the Constitution even if the power is not specifically delegated to it. The issue of sovereignty is already answered as well - the Federal government is supreme in authority in the areas where the states have delegated power to it. This does not mean an express delegation of power - this means that because Congress has the power to coin money, raise fund, issue bonds, etc. it also has the power to establish a bank to further those purposes and that power is supreme even though not specifically delegated.

Can you give me some examples that stick out, or should I just look up the votes? 1790-1804 is a period I spent considerable time studying in graduate school, so I have the necessary materials, and I'd like to revisit this from the historical perspective. I can answer for Jefferson/Burr off the top of my head, but probably not for everybody you have in mind without a little digging.

I mostly had in mind the debates surrounding the authorization of the privately chartered national bank in 1791, the disestablishment of that bank in 1811 and then the re-authorization of a national bank in 1819. You can see a definite sea change in the attitudes of those who opposed the original bank in 1791.

 

[hugh damright]

If the US needs my property to properly exercise its duties, and I do not agree to leave my property, then do federal agents come and run me off at gunpoint, or does that come under the police powers reserved to the States?

 

[The Real Hawkeye]

If the US needs my property to properly exercise its duties, and I do not agree to leave my property, then do federal agents come and run me off at gunpoint, or does that come under the police powers reserved to the States?

Good point. That would be an exercise of police powers, which is probably why the circumscribed power of eminent domain was reserved exclusively to the States.

 

[Art Eatman]

No, Hugh. They make you an offer. If you do not agree to the offer, you have the right to get a judge/jury to adjudicate the value of the property.

If you take no action at all, the fed's offer is then put into escrow and they will indeed physically remove you from the property. There is a novel based on some problems when the feds were first acquiring the land for the White Sands, N.M. nuclear testing area, although it's been so long that I disremember the author and title.

Anecdote: When the International Boundary and Water Commission (IBWC) was first acquiring the land for Amistad Reservoir on the Rio Grande just above Del Rio, Texas, they made offers to the various ranchers. Those who argued and fought in court were paid off and then made to leave immediately. (They commonly did get a bit higher per-acre price than the original offer.) Those ranchers who were in agreement with the offer stayed until the project was completed, so they had some six years of no rent or lease cost or ad valorem taxes. And, in many cases, they ran additional livestock on what had been the neighbors' ranches.

Art

 

[The Real Hawkeye]

"Wrong thinking is punished, right thinking is just as swiftly rewarded."

 

[hugh damright]

I don't know what's proper ... it seems like removing me from my property is a police function and police powers are reserved to the States ... but if the feds had to get the States to acquire federal properties, might that be placing an unfunded mandate upon the States?

 

[The Real Hawkeye]

I don't know what's proper ... it seems like removing me from my property is a police function and police powers are reserved to the States ... but if the feds had to get the States to acquire federal properties, might that be placing an unfunded mandate upon the States?

Not if they provide the funds.

 

[Ira Aten]

Quote:
"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.

It actually says "...nor shall private property be taken, without just compensation."

Actually, it promises just compensation to be paid if property is taken for public good.

A public road, is the good of the people, but proper compensation MUST be paid. That means fair payment, at market value.

The current lunacy of thinking it is Constituional for a bunch of local politicos siezing land, to turn it over to another landowner such as a larger company that convinces the city it can pay more taxes if they will run a landowner off his land in order that the larger business concern can use it, is not anywhere near providing for the common good. It is simply taking juice, much like the Mob.