publius
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How do you collect taxes without some police powers?
(You don't, which is why the Articles of Confederation government failed.)
Where does the Constitution delegate the power to take land for public use?
- Thread starter The Real Hawkeye
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(You don't, which is why the Articles of Confederation government failed.)
Baron Holbach4
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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.
The Real Hawkeye
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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.
Gradually, however, limits were placed, by the people (usually by force of arms), on his level of absolute sovereignty over the land. Deeds were established, giving rights in the land to people other than the sovereign, which could be defended in courts against the sovereign claim. However, the sovereign still retained the power of eminent domain, although highly modified. In the United States the primary modification was the requirement of just compensation and that it be taken for a public use. But the question still becomes, who is the sovereign?
In modern parlance, the sovereign is the State. That is the entity which has inherited the sovereign traits and powers of the king in the modern world. In the United States, we do not acknowledge the Federal Government as a State. It is a mere association of sovereign States, all of which States themselves possess the full complement of the original and inherent traits of sovereignty (as the caged lion still possesses all of its claws and teeth, mass, strength and energy), while the government of the several States has no such original and inherent traits.
Though the States possess the full complement of original and inherent traits, they are highly circumscribed by way of State Constitutions, which are cages and chains for the States, for the protection and benefit of a free people. The Sovereign has been put in chains by its new masters, the people of the States, though still allowed to exercise many of its inherent powers for their good. Still quite a dangerous beast to be sure, its nature forever inclining it towards opportunities to turn the tables, enslaving and/or devouring its masters. However, this is a risk thought by the Founders well worth taking. After all, the State is a powerful tool, so long as it's kept in chains, in the form of a Constitution, by a well armed and vigilant citizenry.
But what of the government of the several States, i.e., the Federal Government? As I said, it has no original and inherent claim to any aspects of sovereignty, not being itself a State. Well, that's where delegation comes in. By enumeration in the US Constitution, the Federal Government is permitted to act as a State would act, but only with respect to those powers delegated, not ceded, to it by enumeration. It doesn't actually own said powers, but it is permitted to exercise them for as long as the contract between the States remains, by the continued consent of its members, intact. In order for it to lawfully exercise any power, therefore, the government of the several States must find it among those delegated to it by enumeration.
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.
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Bartholomew Roberts
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TRH said:
We just had six pages of discussion, including pages where you acknowledged the answer to this question. Maybe you should read it again?
The Real Hawkeye
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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.
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Baron Holbach4
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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?
The Real Hawkeye
member
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.
Baron Holbach4
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Softball question? It was more of a rhetorical afterthought.
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.
The Real Hawkeye
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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?
hugh damright
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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.
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.
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?".
Baron Holbach4
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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.
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.
The Real Hawkeye
member
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.
Al Norris
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That still leaves open the question of the so-called "general welfare clause" that has brought about so much abuse.Bart said:
In this, I agree with Madison. Of what use are the enumerated powers if the commen welfare was a grant of power in and of itself?
Being a realist, I have no doubt that the myriad of law, enacted under that assumption, will ever be repealed. Which brings me to...
[Thread Hijack]
TRH, do you really think that knowing the Dept. of Agriculture; Dept. of Education; Dept. of Energy; Dept. of Health and Human Services; Dept. of Housing and Urban Development; Dept. of Labor; Dept. of the Interior; Dept. of Homeland Security and Dept. of Transportation are all extra-constitutional reaches by the government (as well as all the law surrounding these federal departments), will ever be repealed? These are only the actual Executive Departments as enacted by Congress. They do not include the plethora of Government Corporations, Boards, Commissions, Committees and Quasi-Official Agencies that are also part of the extra-constitutional reach for power of the Federal Government.
As I see it, the only Constitutional departments would be the Dept. of Defense; Dept. of Commerce; Dept. of Justice; Dept. of State; Dept. of the Treasury and provisionally the Dept. of Veterans Affairs (although, that should be melded back into the DOD, from whence it came).
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.
[/Thread Hijack]
The Real Hawkeye
member
Al, if you read the General Welfare clause in context, it states merely that providing for the general welfare of the United States is one of two purposes for the delegation of power to raise revenues in accordance with methods therein specified for the operation of the Federal Government. The specific powers for providing for the general welfare and common defense of the United States are then immediately thereafter enumerated one by one. Providing for the general welfare of the United States is not identified, in Article Eight or elsewhere in the US Constitution, as a power of the Federal Government. Read it carefully.
As for what would happen if we all the sudden had government according to the intent of the framers of the US Constitution, yes, there would be lots of unemployed former Federal employees all of a sudden, but guess what? In a truly free society, it is damned easy for anyone willing to work to make a satisfactory living. If the people of the former Soviet Union can survive suddenly being separated from the government nipple, I think we can too.
As for what would happen if we all the sudden had government according to the intent of the framers of the US Constitution, yes, there would be lots of unemployed former Federal employees all of a sudden, but guess what? In a truly free society, it is damned easy for anyone willing to work to make a satisfactory living. If the people of the former Soviet Union can survive suddenly being separated from the government nipple, I think we can too.
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hugh damright
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Or would many of the government jobs still be there, only they would become State jobs instead of federal jobs?
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.
publius
Member
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.
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:
publius
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My pleasure. The only thing better than getting thanked for entertaining myself here is when I get paid to play on boats.
hugh damright
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Thanks and back at you!
The US is not empowered by the State governments but rather by the States i.e. by the people as fifty sovereignties.
What exactly is it that seems odd about the Preamble to you? Is the Preamble to the US Constitution so different from the Third Article of Confederation which said:
"The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever."
As for the Preamble beginning "We the People of the United States", I understand that the Preamble originally began "We the People of the States of New Hamshire, Massachusetts, Rhode-Island ...", but it wasn't proper to list every State when it wasn't clear that every State would ratify the US Constitution. When nine States ratified it, the US Constitution was to take effect in those States only (which seems to demonstrate a principle of Confederation that the other States have no right to bind Virginia against our will). So the Preamble was changed to say "We the People of the United States".
The Real Hawkeye
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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.
We the people did so as members of sovereign States. Each State was represented, not each person, at the Philadelphia Constitutional Convention.
hugh damright
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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.
ConstitutionCowboy
member
As I See It...
Congress has been granted power to PURCHASE land it needs FROM A STATE upon agreement with the particular state legislature from which the federal government desires to purchase the land. It is in Article I, Section 8, Clause (17). The federal government has not been granted eminent domain powers. If the federal government needs a certain piece of your land and you do not wish to sell it, your state can take it from you by eminent domain, if it so desires, pay you the "just compensation", then, in turn, sell it to the feds. The federal government has no other powers or avenues to acquire land from a citizen or any state of the union.
The government can acquire land in a war, though(Article I, Section 8, Clause (11)), or purchase it from another sovereignty such as Alaska was purchased from Russia. I'm not studied fully on how the United States purchases lands from another sovereignty, but I would assume it is accomplished by treaty, such as how Alaska was purchased.
Woody
One should only need a gun to protect one's self and family, not a squad of police and an army of lawyers!
Congress has been granted power to PURCHASE land it needs FROM A STATE upon agreement with the particular state legislature from which the federal government desires to purchase the land. It is in Article I, Section 8, Clause (17). The federal government has not been granted eminent domain powers. If the federal government needs a certain piece of your land and you do not wish to sell it, your state can take it from you by eminent domain, if it so desires, pay you the "just compensation", then, in turn, sell it to the feds. The federal government has no other powers or avenues to acquire land from a citizen or any state of the union.
The government can acquire land in a war, though(Article I, Section 8, Clause (11)), or purchase it from another sovereignty such as Alaska was purchased from Russia. I'm not studied fully on how the United States purchases lands from another sovereignty, but I would assume it is accomplished by treaty, such as how Alaska was purchased.
Woody
One should only need a gun to protect one's self and family, not a squad of police and an army of lawyers!
Al Norris
Member
Yes Hawkeye, I'm quite aware of what Art. I sec 8 clause 1 means. However...
How on earth do you think all those government departments were formed and all the attendant laws were made, and subsequently upheld by the SCOTUS? Start with Social Security (just picking one from random).
Ask FDR and his Congress how they read that "General Welfare" clause...
Despite the so-called checks and balances, an Act of Congress is deemed Constitutional until the SCOTUS says its not. So far, they have upheld the Laws.
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.
There were, as of Sept. 2004, 1.6 million federal civilian workers with 2.4 million civilian workers collecting pensions.
Tossing 1.6 million people into the job market and destroying the pensions of 2.4 million, many of which have not reached SS retirement age, would be crisis enough. But wait! we are getting rid of all these various departments and programs. This throws another 28.8 million (as of 2001 - table on Page 200) people who are on SS to the wolves.
You just can't put 32 million people into the job market in one fell swoop of the axe. The free market cannot absorb this amount of people. Anyone who says it can, needs a better grip on reality.
So, what's the solution Hawkeye?
How on earth do you think all those government departments were formed and all the attendant laws were made, and subsequently upheld by the SCOTUS? Start with Social Security (just picking one from random).
Ask FDR and his Congress how they read that "General Welfare" clause...
Despite the so-called checks and balances, an Act of Congress is deemed Constitutional until the SCOTUS says its not. So far, they have upheld the Laws.
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.
There were, as of Sept. 2004, 1.6 million federal civilian workers with 2.4 million civilian workers collecting pensions.
Tossing 1.6 million people into the job market and destroying the pensions of 2.4 million, many of which have not reached SS retirement age, would be crisis enough. But wait! we are getting rid of all these various departments and programs. This throws another 28.8 million (as of 2001 - table on Page 200) people who are on SS to the wolves.
You just can't put 32 million people into the job market in one fell swoop of the axe. The free market cannot absorb this amount of people. Anyone who says it can, needs a better grip on reality.
So, what's the solution Hawkeye?
publius
Member
Time for my Ultra-Federalist side to show itself again:
Federalist 15, Hamilton:
Is being near a school with a gun interstate commerce?
Is making your own machine gun interstate commerce? Growing your own wheat or cannabis?
How about rape? A toad found only in California? Partial birth abortion? Assisted suicide?
There have been commerce clause cases about each of those issues, and many more, as you know. Can you name a welfare clause case?
Federalist 15, Hamilton:
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:
Is being near a school with a gun interstate commerce?
Is making your own machine gun interstate commerce? Growing your own wheat or cannabis?
How about rape? A toad found only in California? Partial birth abortion? Assisted suicide?
There have been commerce clause cases about each of those issues, and many more, as you know. Can you name a welfare clause case?
publius
Member
Do you think the State of Virginia has the authority to do that to you?hugh said:
Baron Holbach4
Member
Steward Machine Company vs. Davis, 301 U.S. 548
Helvering vs. Davis, 301 U.S. 619
http://www.ssa.gov/history/court.html
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