The Instigator
The_Silent_Consensus
Con (against)
Winning
39 Points
The Contender
dulinl
Pro (for)
Losing
12 Points

Should eminent domain be allowed for private use? (private use includes economic development)

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Voting Style: Open Point System: 7 Point
Started: 12/12/2007 Category: Politics
Updated: 9 years ago Status: Voting Period
Viewed: 3,406 times Debate No: 344
Debate Rounds (2)
Comments (22)
Votes (17)

 

The_Silent_Consensus

Con

5th Amendment: "nor shall private property be taken for public use without just compensation"

Americans used to live in their homes with the knowledge that the government was there to protect their lives and property from anyone who threatened them. If a widow didn't want to sell his/her home to a developer, he/she didn't have to. That was the end of the story. The developer then had 3 options, one of them illegal. The developer could build around him/her. The developer could find somewhere else. Or the developer could send in thugs to force the widow to sell. If the developer chose the 3rd option, the government would be there to protect the widow from the thugs. With eminent domain for private use, the government IS the thugs. By claiming the new owner can produce more tax revenue, the government can take property from one person and give it to another for the other's private gain. That's wrong.

Some may say, "it's not stealing. The owner receives just compensation." Let's see if that passes the smell test. If I present you a check for your home and make you move, would you say that because I paid you "just compensation," theft has not occurred?

Or some may say that public use is satisfied when a public purpose is the reason for the taking. Let's look at the other places the constitution uses the word "use":

Article 1, Section 10, Clause 2:

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

And Article 1, Section 8, clause 12:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years

So let me ask you, don't they mean that the Treasury will control and employ the revenue, and "employed to raise and support armies," respectively? Of course. So how can one turn around and say "use" means something entirely different elsewhere in the Constitution? They could have said "general welfare" or something along those lines if they meant "public use" to be broad. The words "public use" were meant to be a greater restriction on the taking of property. The public needs to employ the property, not just realize some secondary benefit, in order for "public use" to be satisfied.

What if the current use of the property is the source of social harm? Good question. Nuisance law has been the traditional way of dealing with that, and that's required no compensation whatsoever.

As ruled in Mugler v. Kansas, 123 U.S. 623 (1887):

As already stated, the present case must be governed by principles that do not involve the power of eminent domain, in the exercise of which property may not be taken for public use without compensation. A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the state that its use by any one, for certain forbidden purposes, is prejudicial to the public interests. Nor can legislation of that character come within the fourteenth amendment, in any case, unless it is apparent that its real object is not to protect the community, or to promote the general well-being, but, under the guise of police regulation, to deprive the owner of his liberty and property, without due process of law. The power which the states have of prohibiting such use by individuals of their property, as will be prejudicial to the health, the morals, or the safety of the public, is not, and, consistently with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent owner. It is true, when the defendants in these cases purchased or erected their breweries, the laws of the state did not forbid the manufacture of intoxicating liquors. But the state did not thereby give any assurance, or come under an obligation, that its legislation upon that subject would remain unchanged.

The Public Use Clause was meant to be more restrictive than "public purpose." Our founders understood that the taking of an innocent person's property should not be a regular means of exercising their enumerated powers. The question of whether the government can regulate property with its police power is different from whether the government can take property with eminent domain. State nuisance law, not eminent domain is the appropriate way to deal with social harm
dulinl

Pro

5th Amendment: "nor shall private property be taken for public use without just compensation". I draw your attention to the,"...just compensation" portion. This clearly gives the government the right to take land. It as also been upheld by the courts that using said land for private developement is in line with "public use", as long as there is benefit to the city, town, or county (often in the form of additional taxes collected). I think it is important to not confuse if such an action as exercising eminent domain to such ends is the "right" thing to do, with should it be allowed. The law is clear, it should and is allowed. Until that is changed there is no further debate.
Debate Round No. 1
The_Silent_Consensus

Con

I don't know anyone disputing the right of government to take land.

The courts have made an error in upholding it for private use. As was ruled in Marbury v. Madison 1 Cranch (5 U.S.) 137 (1803):

It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.

The Public Use Clause was meant to be a limitation on government's ability to take property, just as the just compensation clause was. With that in mind, the only other interpretation would be that it distinguishes takings that require compensation with those that don't. But that would be going against a founding principle: all takings require compensation.

And again, I refer you to the other places that "use" is applied in the constitution. Can you seriously tell me that the same interpretation of the word "use" can be applied in those two places? The word "use" in those places means "the act of employing." If that's the case, then the word should have the same meaning in Public Use, and it's hard for the public to "employ" the property when the property is given to a private individual and the public has no right to it.

And again I'll emphasize, if the founders meant for it to be broad, why didn't they just say "public purpose" or "general welfare?"

And to say that "public use" means "public purpose" would make it redundant with the Necessary-and-proper Clause:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

With the Necessary-and-proper clause, the Public Use Clause would be irrelevant if it meant "public purpose." The explicit mention of one thing excludes all others. So even if it said, "nor shall private property be taken without just compensation," they wouldn't be able to take it for whatever reason. Necessary-and-proper clause would ensure they only do it to exercise an enumerated power.

The Public Use Clause was meant to be a greater limitation on the ability to take property. But now let's shift to the rulings that inspired the decision you talk about:

Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 161-162 (1896):

To irrigate, and thus to bring into possible cultivation, these large masses of otherwise worthless lands, would seem to be a public purpose, and a matter of public interest, not confined to the landowners, or even to any one section of the state. The fact that the use of the water is limited to the landowner is not, therefore, a fatal objection to this legislation. It is not essential that the entire community, or even any considerable portion thereof, should directly enjoy or participate in an improvement in order to constitute a public use.

That broad statement constitutes as dictum (An opinion voiced by a judge that has only incidental bearing on the case in question and is therefore not binding), because the law in question made clear:

All landowners in the district have the right to a proportionate share of the water, and no one landowner is favored above his fellow in his right to the use of the water

The SCOTUS cited no authority for this dictum, and that was the first line of deviation from the Public Use Clause

Then to United States v. Gettysburg Electric R. Co., 160 U. S. 668 (1896), the second line of deviation, where the government was using eminent domain to build battlefield memorials at Gettysburg. That constitutes as a public use by anyone's standards. But, the SCOTUS again engaged in dictum:

In these acts of congress, and in the joint resolution, the intended use of this land is plainly set forth. It is stated in the second volume of Judge Dillon's work on Municipal Corporations (4th Ed. 600) that, when the legislature has declared the use or purpose to be a public one, its judgment will be respected by the courts, unless the use be palpably without reasonable foundation. Many authorities are cited in the note, and, indeed, the rule commends itself as a rational and proper one.

That was unnecessary and unjustifiable. To defer the definition of "public use" to the legislature is like deferring to the accused the decision of whether he/she's guilty. Or to keep it in context with the Bill of Rights: Do we defer to the legislature's interpretation of when a search or seizure is "reasonable?" Of course not, because it was meant to be a limitation on their power to search and seize. So given that "public use" was meant to be a limitation on their power to take property, why would we defer to the legislature what a "public use" is?

Berman v. Parker and Midkiff v. Hawaii Housing Authority also cited the dicta, and Kelo was a logical extension of that.

So there you have it. The Public Use Clause was meant to be more restrictive than "public purpose," and the SCOTUS has made an error. Our founders understood that the power of taking an innocent person's property should not be a regular means of exercising their enumerated powers, but should be more restrictive. The words "Public Use" mean the government may take property only if it actually uses or gives the public a right to use the property, not if the public receives some secondary benefit. Furthermore, if "public use" meant that, given that all uses of property can be said to have some secondary benefit, any taking would be justified and the words "public use" have no meaning
dulinl

Pro

Marbury v. Madison 1 Cranch (5 U.S.) 137 (1803), is not relevant. It was in regard to appointments and judicial process...no were in the case is eminent domain mentioned. In fact relevant law in that case was: 1)U.S. Const. art. III, Section 2 Clause 2 and 2)Judiciary Act of 1789, � 13. see <http://en.wikipedia.org...; for reference.

Second, the argument of semantics over the word "use" is not a viable defence. That of course is always been were the debate is and as i've stated the court has already upheld the right of the government to take land for private development.

Your argument of the founders intent is nothing more than opinion, no additional comments are needed in response. (Unless, you know one personally.)

I'll skip over all your other case law sited and give you the latest. It supports my stand and states, "...if an economic project creates new jobs, increases tax and other city revenues, and revitalizes a depressed (even if not blighted) urban area, it qualifies as a public use." this is from:

Kelo v. City of New London, 545 U.S. 469 (2005)
<http://en.wikipedia.org...;

With that said because this is a supreme court ruling all other case law prior is void.

All that is left is what I've already stated. What you find to be "wrong" isn't relevant. The ppl have spoken and eminent domain for private development is valid and should be allowed. If for no other reason than it is legal. Would you take your argument a step further and argue for anarchy? Ignoring the law would be exactly that. Until the law is changed, that is the only alternative.
Right and wrong are always relative in these matters. The law is there to settle the argument. This one has already been settled. Bitter taste in the mouth, or not.
Debate Round No. 2
22 comments have been posted on this debate. Showing 1 through 10 records.
Posted by NJCon 9 years ago
NJCon
Because dulinl characterized my "support of any anarchy" as "stupid and childish", it would be helpful if I more clearly defined the "anarchy" I'm referring to. I was referring to civil disobedience and orderly protest, not out-of-control violence and the total absence of government. The sit-ins of the Civil Rights era are a classic example of anarchy that also happens to be legitimate political expression. dulinl should never have used the word "anarchy" to begin with. If the entire substance of dulinl's argument was to say "I'm right because the Court currently agrees with me and anyone who doesn't think so is arguing for anarchy" THAT is "stupid and childish" - and more importantly, it is NOT a reasoned arugument. No one said anything about the opponents of Kelo turning around and inciting mass anarchy. What they will do (and are doing) is continue to fight within the system.

Finally, dublinl spoke of "reality" as if my arguments were somewhat removed from it, but statements like "The ppl have spoken" and "Laws are a thoughtful representation of our will" are purely fanciful platitudes. Anyone who is really in tune with reality knows that Congress barely represents the will of the people (even in a republic, the balance of power between the wealthy and the not wealthy is severely disproportionate), and the Court, being an unelected body, is even worse. In practical terms, the power the Court exercises (especially nowadays) borders on the dictatorial. The SC justices have no real check on their power except for their own restraint. So long as the decisions make some sense, nobody complains. However, when something like Kelo gets handed down, people had better be debating and fighting for their rights.

I don't even know what dublinl meant when he said "You can't down play a supreme court decision, period". All I can say to that is it's a good thing a whole lot of people decided to downplay Plessy v. Ferguson and Jim Crow.
Posted by vitalyg 9 years ago
vitalyg
Two quick points. 1. When I mentioned what the court said in regards to the states passing laws, it was not a should, it was actually an example of how the court, although reaching their decision one way, understood that it would be better if the law allowed them to decide otherwise. Dulinl should have used that to buttress his argument. 2. I don't think it will be struck down because the state legislatures will most likely block the practice so the issue will be moot, and considering the court is taking less and less cases for review each year, I doubt it will reach the bench any time soon.
Posted by NJCon 9 years ago
NJCon
dulinl's response to my posts betrayed either a lack of understanding or deliberate mischaracterization of the arguments I made.

The main point I was trying to get across was this: the very nature of a debate forum requires a free and open inquiry of all issues before it. It is NOT an effective argument to say "my side wins because the courts have already ruled in favor of my viewpoint". If that's the case, then why have a debate to begin with?

I did NOT advance the argument that the passage of laws ought to be done by opinion polls. I was saying that dulinl was wrong to say "The ppl have spoken" because in point of fact, if "the people" really had decided this issue, the traditional method of eminent domain takings would still be the law of the land.

The reason why I indicated that Kelo could be struck down by a later Court was to reinforce the point that this debate should be conducted de jure, not de facto. If Kelo is reversed by the Court, will dulinl then argue the other side owing to that reason alone? Also, dulinl stated "This one has already been settled", and that is certainly NOT true. Like the abortion battle, the battle over eminent domain will be a never-ending fight. Kelo was just the first round.

(To be continued ...)
Posted by vitalyg 9 years ago
vitalyg
It was a case of first impression, there was no previous case law on this point, that is why the case was so monumental. In fact, that case is why you two had this debate to begin with.
Posted by dulinl 9 years ago
dulinl
That was my argument. And I said it over turned all relevant previous case law. The states part I did not know, but wasn't mention so has nothing to do with the debate. So, move along and try harder to be smart somewhere else. Maybe you should actually debate instead of sitting on the side lines. Until you do your just a tool.
Posted by Tatarize 9 years ago
Tatarize
vitalyg, you're right. "Should" could have and should have won. But, all the argument rested on the case law. As such, the case law is clear on the legal point. It can be used for that. The entire argument was if they can do that.

Can is a loser. They can.
Should should be a winner. It wasn't argued.

Con wins.
Posted by vitalyg 9 years ago
vitalyg
Ok, well first of all Kylo did not overturn Marbury v. Madison. In all the case law that was cited here, misplaced in my opinion, no one picked up on the importance of Kylo. I suggest both of you print it out and read it in its entirety. Specifically, pay attention to the part where the Supreme Court of our nation advises the states to pass legislation blocking this practice. The state of Illinois has done that last year, and many more a following suit. Second of all, no where in Kylo does it say "private parties can take land by eminent domain." The government can take it for the benefit of private parties only if those private parties will do with the land such, that it will benefit the community. That is the key, the benefit needs to flow both ways.
Posted by A-ThiestSocialist 9 years ago
A-ThiestSocialist
It's fine, it's one of the downfalls of the internet and text, no vocal inflections.
Posted by dulinl 9 years ago
dulinl
I'm sorry, I misunderstood your comment then.
Posted by Tatarize 9 years ago
Tatarize
By "it", I meant eminent domain for commercial use in the obvious context of Kelo v. City of New London. The Con argument was completely in a legal context and Kelo settled that. Your argument is obviously right on the point. The Supreme court settled the legal argument, there is no more legal argument. As that was the entire Con case, Pro wins.

My point was that the stated argument of "should" it be used could have allowed a much wider argument than just the legal, as such, the argument could have been won by the Con side. However, no such argument was made. You clearly won on the merits.
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