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

[The Real Hawkeye]

In the case of forts, magazines, armories, and other needful buildings, the Constitution mentions the need to get the consent of the State legislature in question, but there is no mention of any need to get State consent when it comes to acquiring land for other federal purposes. For reasons already stated, the power to purchase on behalf of the public must include the power to condemn.

Publius, if the Constitution lays out a method, other than eminent domain, for acquiring forts, magazines and other needful buildings, why would you assume that eminent domain is a power belonging to the Federal Government for all other purposes? The Founders were clear that the Federal Government is not itself a State, and therefore has no original sovereign powers, relying entirely on a delegation from the States for all such, said delegation being required to be enumerated within the four corners of the Constitution. Eminent domain is not one of those enumerated powers, and you cannot say that it has it by its nature, because it is not the nature of associations of States to have said power, or any other power, without delegation from sources that possess it originally, i.e., the States.

I think the problem lies in the fact that the Federal Government has usurped so many of the characteristics of a super state that people have come to think of the Federal Government as an actual State, and this is not the case under the US Constitution.

 

[The Real Hawkeye]

Thanks Antarti and Hugh. Two excellent posts. Your reasoning, supported by fact, is unassailable.

 

[Art Eatman]

Ira Aten

RE: "The big con, is the government taking private property and delegating it to another private individual (a company) if the government believes more tax revenue will result."

That's what I've brought up about SCOTUS and the Urban Renewal thing. Prior to Urban Renewal, eminent domain did indeed require that the purpose be for public USE.

Art

 

[Baron Holbach4]

. . . Federal Government has usurped so many of the characteristics of a super state that people have come to think of the Federal Government as an actual State. . .

By "usurped" I think you meant "assumed."

 

[Baron Holbach4]

Rothbard on eminent domain

P. The Right of Eminent Domain

In contrast to the franchise, which may be made general and nonexclusive (as long as the central organization of force continues to own the streets), the right of eminent domain could not easily be made general. If it were, then chaos would truly ensue. For when the government confers a privilege of eminent domain (as it has done on railroads and many other businesses), it has virtually granted a license for theft. If everyone had the right of eminent domain, every man would be legally empowered to compel the sale of property that he wanted to buy. If A were compelled to sell property to B at the latter’s will, and vice versa, then neither could be called the owner of his own property. The entire system of private property would then be scrapped in favor of a society of mutual plunder. Saving and accumulation of property for oneself and one’s heirs would be severely discouraged, and rampant plunder would cut ever more sharply into whatever property remained. Civilization would soon revert to barbarism, and the standards of living of the barbarian would prevail.

The government itself is the original holder of the “right of eminent domain,” and the fact that the government can despoil any property holder at will is evidence that, in current society, the right to private property is only flimsily established. Certainly no one can say that the inviolability of private property is protected by the government. And when the government confers this power on a particular business, it is conferring upon it the special privilege of taking property by force.

Evidently, the use of this privilege greatly distorts the structure of production. Instead of being determined by voluntary exchange, self-ownership, and efficient satisfaction of consumer wants, prices and the allocation of productive resources are now determined by brute force and government favor. The result is an overextension of resources (a malinvestment) in the privileged firm or industry and an underinvestment in other firms and industries. At any given time, as we have stressed, there is a limited amount of capital—a limited supply of all resources—that can be devoted to investment. Compulsory increase in investment in one field can be achieved only by an arbitrary decline in investment in other fields.[72]

Many advocates of eminent domain contend that “society,” in the last analysis, has the right to use any land for “its” purposes. Without knowing it, they have thus conceded the validity of a major Henry Georgist plank: that every person, by virtue of his birth, has a right to his aliquot share of God-given land.[73] Actually, however, since “society” does not exist as an entity, it is impossible for each individual to translate his theoretical aliquot right into real ownership.[74] Therefore, the ownership of the property devolves, not on “everybody,” but on the government, or on those individuals whom it specially privileges.

http://www.mises.org/rothbard/mes/chap15d.asp

 

[Ira Aten]

Art:
RE: "That's what I've brought up about SCOTUS and the Urban Renewal thing. Prior to Urban Renewal, eminent domain did indeed require that the purpose be for public USE."


Man you got that right, that's for sure.

I think the term "Urban Renewal" is Psycho-babble for "I want to re-distribute wealth and assets because I "care" about the environment, (i.e. dolphins, cats, poodles, salamandars, etc.) much, much more, than any mere mortal could ever imagine... (being that the average American simply does not possess the compassion and capacity to "get it" the way I do."

"Traffic Calming Circles" is another good term that is an offspring of "Urban Renewal". I love that one.

 

[The Real Hawkeye]

By "usurped" I think you meant "assumed."

I believe I said what I meant, but please explain your statement.

 

[The Real Hawkeye]

By "usurped" I think you meant "assumed."

I believe I said what I meant, but please explain your statement.

 

[publius]

Publius, if the Constitution lays out a method, other than eminent domain, for acquiring forts, magazines and other needful buildings, why would you assume that eminent domain is a power belonging to the Federal Government for all other purposes?

Because it is a power necessary and proper for carrying into execution the task of making a post road, among others.

The Founders were clear that the Federal Government is not itself a State, and therefore has no original sovereign powers, relying entirely on a delegation from the States for all such, said delegation being required to be enumerated within the four corners of the Constitution.

The major purpose of the Constitution was to present to the world a common marketplace and, in military terms, a single State. Within its sphere, it is a sovereign.

Eminent domain is not one of those enumerated powers, and you cannot say that it has it by its nature, because it is not the nature of associations of States to have said power, or any other power, without delegation from sources that possess it originally, i.e., the States.

I think it was delegated, as I said. You brought up the UN as a comparison association, but does the UN Charter have anything analogous to the Supremacy Clause? I still don't really know what that index image I posted is, but it is talking about eminent domain at the same time that it is talking about paying some schooner and getting a bust of Chief Justice Ellsworth, who retired in 1800.

 

[The Real Hawkeye]

Publius Said: Because it is a power necessary and proper for carrying into execution the task of making a post road, among others.

But nowhere in the Constitution does it say that the Federal Government will have all powers which are necessary and proper. It says that it has been delegated the power to pass laws necessary and proper for the powers it has been delegated. If a power has not been delegated, it cannot be found in the necessary and proper clause. Only laws are authorized in that clause, and only those laws which are necessary and proper to the exercise of powers which were delegated by enumeration, i.e., "the foregoing powers." Read it carefully again.

If the Federal Government were to be given carte blanche to determine on its own which powers it has, this would be to make it's power unlimited, and we know that it's powers were intended by the framers to be few and defined. This is why the necessary and proper clause authorizes the making of laws necessary and proper to the "foregoing powers," and not carte blanche to assume powers it deems necessary and proper.

As for post roads, it can acquire land from the States via the Supremecy Clause, i.e., it has the delegated power to establish such roads, therefore the States are bound to provide it with the paths needed, since establishing post roads is a power delegated to the Federal Government. There is no need to manufacture a new power here.

PS Have to run, so will reply to the remainder of your post when I have more time.

 

[Bartholomew Roberts]

The Constitution was a compromise, between UltraFederalists, Federalists, and Anti-Federalists, yet I continue to see only the "Ultra" side expressed by many (including a couple of eloquent mods). Little heed is paid to Madison, who drafted the vast majority (yes, with much input), and laid out plenty of explanation of various parts in other contemporaneous writings.

Well, with regard to implied powers, the Ultra side pretty much won that part of the debate and won it early, especially with regard to implied powers. 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)

There are half a dozen good practical reasons why that doctrine will never be overturned now; with number one being that it would undo so much federal law that nobody can see the end result. Even Thomas, who is by far the most willing to adopt a strict constructionist view of the Constitution has never suggested overturning implied powers...

My argument wouldn't be to try and tear down that doctrine 200 years after the fact - that is a losing battle and one that even a conservative Supreme Court will never grant. Now arguing that the implied powers be more strictly tied to grants of enumerated power and less room allowed for broad fuzzy stuff like "commerce clause" - that is an argument that can gain ground.

Finally, for the libertarian-minded amongst you there are interesting arguments that limited use of eminent domain for public purposes serves an important part in keeping transaction costs low and a free market economy tends to work best when transaction costs are low.

 

[The Real Hawkeye]

Bart, if by implied powers you merely mean the power to pass laws consistent with (i.e., necessary and proper for) the exercise of delegated powers, we are in agreement. But you use the term as though it means the power to assume new powers not delegated but thought necessary and proper, ad hoc, by the Federal Government. That is where we must part ways. This use of the term in question is completely incompatible with any notion of limited government.

 

[The Real Hawkeye]

The major purpose of the Constitution was to present to the world a common marketplace and, in military terms, a single State. Within its sphere, it is a sovereign.

Sorry, but you could not be more wrong, Publius. In no sense was the United States to become a State in itself. If it became a State, than the States which make it up would cease entirely being States, and become mere political subdivisions of the United States, like counties. This was in no way the plan of the Framers. States were to remain fully States, with all elements of State sovereignty intact, except those which were voluntarily delegated (notice that they were not given, but only delegated, which denotes revocability) to the government (not State) of the several States.

 

[The Real Hawkeye]

I think it was delegated, as I said. You brought up the UN as a comparison association, but does the UN Charter have anything analogous to the Supremacy Clause?

I don't know, but the Supremacy Clause merely establishes that in those areas where the Federal Government has been delegated powers, no State may pass laws which conflict with its exercise. So, for instance, States may not establish their own rules regarding naturalization unless Congress fails to enact such laws. Once Congress enacts such laws, they supersede and nullify any laws established by a State in that regard.

However, with regard to any power not delegated by enumeration to the Federal Government, States have their own Supremacy Clause. It's called the Tenth Amendment. So, for example, in the area of the kinds of plants we are allowed to grow, sell and consume, the Federal Government has no authority to pass laws, but the States do, since any power not delegated to the Federal Government belongs exclusively to the States and the people. If the Federal Government were to pass a law regulating the kinds of plants we may grow, sell and consume, any State would be within its rightful authority to pass a contrary law nullifying it within their State borders.

 

[hugh damright]

The major purpose of the Constitution was to present to the world a common marketplace and, in military terms, a single State. Within its sphere, it is a sovereign.

In no sense was the United States to become a State in itself.

I think y'all are both right and are talking semantics.

The way I understand the intent, as a Citizen of Virginia I should see Virginia as my Country and Virginians as my People, I should have no part in US affairs such as voting for a US President or Senator ... I should vote in State elections for my Electoral College (who would cast my State's vote for POTUS) and I should vote for my State Legislators (who would in turn choose our State's Senators).

But a foreign nation, say for instance France, would see the US as the Country. They would only interface with the US, and not directly with Virginia.

"The true theory of our Constitution is surely the wisest and best, that the States are independent as to everything within themselves, and united as to everything respecting foreign nations." --Thomas Jefferson to Gideon Granger, 1800

...

Regarding the supremacy clause, it does not make the US Government Supreme, it makes the Constitution supreme, and so it makes the Tenth Amendment supreme. The supreme law of the land is that there is a separation of State and Federal powers.

 

[Bartholomew Roberts]

Bart, if by implied powers you merely mean the power to pass laws consistent with (i.e., necessary and proper for) the exercise of delegated powers, we are in agreement.

That is what I meant.

But you use the term as though it means the power to assume new powers not delegated but thought necessary and proper, ad hoc, by the Federal Government.

Well considering the wide range of opinion among the founding fathers on any given aspect of the Constitution, it may just be that I see some powers as reasonably being part of the necessary and proper clause that you do not.

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, I think there must have been a genuine need for it for so many people who opposed it to accept it. I find it difficult to believe that so many people who had put their lives and fortunes on the line were all corrupted by power when they had so vehemently refused it earlier.

Sorry, but you could not be more wrong, Publius. In no sense was the United States to become a State in itself. If it became a State, than the States which make it up would cease entirely being States, and become mere political subdivisions of the United States, like counties. This was in no way the plan of the Framers. States were to remain fully States, with all elements of State sovereignty intact, except those which were voluntarily delegated (notice that they were not given, but only delegated, which denotes revocability) to the government (not State) of the several States.

Don't you think it is a little abrupt to tell Publius he could not be more wrong when he basically states what has been the law since 1876? If you accept the idea that eminent domain is one of the attributes of sovereignty delegated to the federal government, then saying the federal government is supreme there is perfectly inline with your own reasoning.

Finally, the legal theory disputing your interpretation of state sovereignty was also introduced with McCulloch v. Maryland in 1819. The theory is that the people delegated to the federal government the powers that formed the union and the States lack the authority to overrule the people by secession. Whether you agree with that reasoning or not, as a practical aspect, that debate was decided after the Civil War.

It seems to me that you want to argue for a more literal and strict constructionist interpetation of the Constitution than that proposed by a fair portion of the people who did found the country. You certainly have a point that during the early period of our history some did agree with your arguments and proposed them as key planks in the founding of our government. I think a lot of those arguments still have relevance and value; but I think where we differ is I wonder why some of these ideas were abandoned (in some cases by the very people who advocated them). Certainly the attraction of power played a part; but my reading of history convinces me that practical considerations made it neccessary as well.

Also at the end of the day, the things you are arguing were decided long ago and there is minimal public support for revisiting them. When 6 out of 3 justices in Gonzales v. Raich favor a standard for the Commerce Clause that makes Wickard look generous (including "strict constructionist" Scalia...also not a good sign that two of the three are no longer with the Court), arguing for a standard of state sovereignty that is light years beyond what the most conservative justices in the past 50 years are willing to accept is putting the cart before the horse.

Finally, at the practical end, a nation is only as powerful as its economy. Anyone who has played MOO, Civilization, Age of Empires or any one of a thousand similar games knows this instinctively. For all the great aspects of independent sovereignty, efficiency is not one of them. The U.S. was forced to compete with strong centrally planned economies in the USSR and China. Luckily for us, the efficiencies of capitalism were greater than the efficiency of central planning. However the new hybrid of capitalism combined with strong central governments will be a challenge for our economy. If we can maintain the freedoms we have, we will be doing well. If we can turn back the clock some, that would be brilliant. However, it is highly unlikely in my mind that given the practical circumstances, we will be revisiting the market economies of 1793.

 

[hugh damright]

Don't you think it is a little abrupt to tell Publius he could not be more wrong when he basically states what has been the law since 1876?

I think it's given that laws which started in 1876 are intended to undo the US Constitution.

arguing for a standard of state sovereignty that is light years beyond what the most conservative justices in the past 50 years are willing to accept is putting the cart before the horse.

Is it putting the cart before the horse, or is it putting the Constitution above the government?

 

[mountainclmbr]

This debate is really crazy. This is like debating what "is" means. "Oh, takings means this, no confiscation means that". The SCOTUS, by precedent, legalized theft if it benefits an entity. They want it to benefit the state, but the pendulum swings both ways. So, if a politicians property will benefit me, I can take it and pay what "I" say is fair. This may be a really great way for citizens to get back their stolen taxes.

 

[Bartholomew Roberts]

I think it's given that laws which started in 1876 are intended to undo the US Constitution.

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?

Is it putting the cart before the horse, or is it putting the Constitution above the government?

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.

Which all goes to the real issue here - who gets to interpret the Constitution? Contrary to what some here might like to think, the arguments made by the other side are often well-reasoned and compelling at the Supreme Court level (though there are certainly exceptions). Also contrary to popular belief, they are often supported with the writings of the founders or textual arguments from the Constitution - and we aren't talking crazy arguments that have no basis in fact either.

So who gets to decide? To get a look at some of the issues the Court considers, look at Printz v. United States. In this case, both sides look to the history and writings of the Founders to support their arguments. One side argues that the Feds cannot use state-appointed officers to serve Federal law. The other side argues that the founders intended to do exactly that (as a bonus, this is a case covering a portion of the Brady Act). So who is right? Is it easy to clearly say that one side is right and the other wrong in either interpretation?

 

[Al Norris]

Point of order!

Scalia is only a strict constructionist when it pleases him to be. Otherwise, he can be as liberal as Ginsberg. :banghead:

 

[The Real Hawkeye]

I think y'all are both right and are talking semantics.

The way I understand the intent, as a Citizen of Virginia I should see Virginia as my Country and Virginians as my People, I should have no part in US affairs such as voting for a US President or Senator ... I should vote in State elections for my Electoral College (who would cast my State's vote for POTUS) and I should vote for my State Legislators (who would in turn choose our State's Senators).

But a foreign nation, say for instance France, would see the US as the Country. They would only interface with the US, and not directly with Virginia.

"The true theory of our Constitution is surely the wisest and best, that the States are independent as to everything within themselves, and united as to everything respecting foreign nations." --Thomas Jefferson to Gideon Granger, 1800

You have that exactly right, Hugh.

 

[Baron Holbach4]

This is why the necessary and proper clause authorizes the making of laws necessary and proper to the "foregoing powers," and not carte blanche to assume powers it deems necessary and proper.

Assume/Usurp. Yep. We're on the same page.

 

[The Real Hawkeye]

Bart, I am a huge fan of Age of Empires and Age of Empires II. Have you tried Rome Total War yet?

Luckily for us, the efficiencies of capitalism were greater than the efficiency of central planning.

If anything was learned in the 20th Century, I hope it was that central planning is highly inefficient, and to the extent it is engaged in, an economy will be weak. 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.

 

[publius]

But nowhere in the Constitution does it say that the Federal Government will have all powers which are necessary and proper.

True, but Madison seemed to think that some specific powers (not named) must follow from general powers delegated.

No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.

I should have no part in US affairs such as voting for a US President or Senator

Not those, but you were to vote for your US House Representative, who had the power to tax you.

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

 

[The Real Hawkeye]

Pubius, as I've stated, the necessary and proper clause was essential to efficient government, but it was not carte blanche for assuming powers not delegated. When a power is delegated, the particulars necessary and proper for exercising said power go with it, naturally, or the power could not be exercised at all. These are not new powers, though, just the necessary and proper particulars of the power delegated. Delegating the power to coin money, for example, doesn't also delegate the power to launch men to Mars under the justification that there might be precious metals there that we could use to coin money. This argument would be disingenuous on its face. 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.