publius
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How do you collect taxes without some police powers?police powers are reserved to the States
(You don't, which is why the Articles of Confederation government failed.)
How do you collect taxes without some police powers?police powers are reserved to the States
Where does the Constitution delegate the power to take land for public use?
It is untrue that eminent domain is an inherent trait of "governments." It is, however, an inherent trait of sovereignty. Sovereigns have possessed this power since time immemorial. That's because, originally, the sovereign was the full owner of all the land. Those who lived on it, did so with his permission, and strictly for his benefit. Therefore, he could withdraw his permission at will.Regardless of whether there is or is not delegated power found in the Constitution to take land for public use, governments have always claimed a right to exercise eminent domain. Because fee simple is the most absolute form of title to private property, this title is limited due to a potential interest in the property maintained by the state, that can result in a taking through eminent domain. This is why radical libertarians have a beef with the concept of eminent domain: there is no way an individual can exercise full title to private property so long as governments hold sway through eminent domain, property taxes, allodial title, police power, and escheat.
TRH said:So, I ask again, where in the US Constitution is the Federal Government delegated by enumeration the power of taking private land via eminent domain?
Bart, I was responding to the poster immediately preceding my last post. I never acknowledged that the Federal Government possesses, by delegation, the power of eminent domain. Read my posts more carefully. I made a very critical distinction between having the ability legally to acquire land from the States, on the one hand, when a delegated power requires it, and possessing the delegated or inherent power of eminent domain, on the other.We just had six pages of discussion, including pages where you acknowledged the answer to this question. Maybe you should read it again?
So, I ask again, where in the US Constitution is the Federal Government delegated by enumeration the power of taking private land via eminent domain? It was not, is the answer, and therefore does not possess it.
Wow! Talk about a softball question. It does so by usurpation. Possessing a standing army empowers central governments to obtain desired outcomes by force of arms, without need of law. History witnessed an example of same in the early 1860s.Let's assume you are correct: nowhere in the U.S. Constitution is the federal government delegated by enumeration the power of eminent domain.
Now, how is it that the U.S. federal government behaves as if it possesses the power of eminent domain?
It does so by usurpation
We are on the same page. When I discuss government, sovereignty, rights, etc., I insist on discussing them from a de jure perspective, regardless of de facto realities. I readily acknowledge the existence of de facto realities, but I don't bother discussing their details. They do not interest me, as they amount to little more than might makes right, and what of value can one say about that?Does the "usurpation" example you cited -- War of Northern Agression -- mean the usurpation stopped in 1865? I see the usurpation continuing to this very day.
I think the Articles might have been amended to address the issue of collecting taxes, and I think it was attempted, but since any amendment could be stopped by any one State, I think that is why the Articles failed, and why we came up with a system where amendments can be ratified by 3/4 of the States.How do you collect taxes without some police powers?
(You don't, which is why the Articles of Confederation government failed.)
I thought we had it settled that the US does not have a right to exercise eminent domain, that they only have a right to exercise their delegated powers, and although their delegated powers might require them to take land in specific instances, that is not the same as saying that the US has a right to exercise eminent domain.governments have always claimed a right to exercise eminent domain.
The US behaves as if it possesses countless powers which are neither delegated nor implied ... it's almost like you're asking "how can something be unconstitutional if the federal government does it?".Let's assume you are correct: nowhere in the U.S. Constitution is the federal government delegated by enumeration the power of eminent domain.
Now, how is it that the U.S. federal government behaves as if it possesses the power of eminent domain?
Thanks Baron. Speaking for myself, I learn a lot every time I participate in one of these debates. Some might say that I learn the wrong lessons but, naturally, I disagree. Each one of these is a learning process for me. I actually started this thread to learn something, not necessarily to teach anything, and due to the contributions of others (you included), some of which I came to agree with, and some of which challenged me to think and research, I came away a little more knowledgeable about the subject. That's what I love about this place. Every debate is a learning experience for all who participate and follow along.TRH, Bart, and Hugh:
I appreciate all of your insights into the Constitution and nuances of the law. I learn something everytime I read your posts. You are all a class act and a credit to thehighroad.org.
P.S. Art and publius, too. Thanks for your input.
That still leaves open the question of the so-called "general welfare clause" that has brought about so much abuse.Bart said: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.
Or would many of the government jobs still be there, only they would become State jobs instead of federal jobs?What would be the result of disbanding these concerns? Remember, the US Federal Government is by far the nations largest employer... The result would be as devastating as any civil war could possibly be.
I do not consider there to be, or to have ever been, an open question about the "general welfare" clause. It seems obvious to me that a limited federal government does not have jurisiction over the common good. That would make the US a commonwealth, but Virginia is the Commonwealth, and the US is a limited federal government.That still leaves open the question of the so-called "general welfare clause" that has brought about so much abuse.
In this, I agree with Madison. Of what use are the enumerated powers if the common welfare was a grant of power in and of itself?
Taking land in specific instances in accordance with powers delegated by the people would be pretty darn close to my definition of eminent domain. Seems like the same thing to me.although their delegated powers might require them to take land in specific instances, that is not the same as saying that the US has a right to exercise eminent domain.
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
My pleasure. The only thing better than getting thanked for entertaining myself here is when I get paid to play on boats.P.S. Art and publius, too. Thanks for your input.
Thanks and back at you!I appreciate all of your insights into the Constitution and nuances of the law. I learn something everytime I read your posts. You are all a class act and a credit to thehighroad.org.
The US is not empowered by the State governments but rather by the States i.e. by the people as fifty sovereignties.If the Constitution only creates an association of States, and the feds only have powers delegated by State governments, isn't it a bit odd that the Constitution begins with these words:
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
The difference is huge. It is that the power of eminent domain, possessed by States, allows for the taking by the sovereign of private property for any public purpose. The power of the Federal Government, on the other hand, is only that of passing laws requiring the States to provide only that property which is necessary and proper for the execution of a delegated power, i.e., not for any public purpose. That's a substantial and qualitative distinction.Taking land in specific instances in accordance with powers delegated by the people would be pretty darn close to my definition of eminent domain. Seems like the same thing to me.
We the people did so as members of sovereign States. Each State was represented, not each person, at the Philadelphia Constitutional Convention.If the Constitution only creates an association of States, and the feds only have powers delegated by State governments, isn't it a bit odd that the Constitution begins with these words:
Quote:
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
If the US has the power of eminent domain, the power to tax, and the power to do whatever is for the common good ... then does that give them the power to charge me a property tax to be used for the common good, and to take "back" my property if I do not pay? Because I think my County has the authority to do that, but not the US.Taking land in specific instances in accordance with powers delegated by the people would be pretty darn close to my definition of eminent domain. Seems like the same thing to me.
we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the Union to the persons of the citizens, --the only proper objects of government.
Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms. The first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or States. It is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities, that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it.
Politicians like to say they're promoting the general welfare, but when has that argument actually been used in a court? Just a short list of issues about which there have been commerce clause based court cases:Antipitas said:One simply cannot place all the blame upon an expanded Commerce Clause. Or is someone going to try and justify Public Education as Commerce? There is only one justification for the ED, DOE, etc., and that is misuse and abuse of the general welfare clause.
Do you think the State of Virginia has the authority to do that to you?hugh said:then does that give them the power to charge me a property tax to be used for the common good, and to take "back" my property if I do not pay? Because I think my County has the authority to do that, but not the US.
There have been commerce clause cases about each of those issues, and many more, as you know. Can you name a welfare clause case?