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February 21, 2006

Comments

noah

I read recently that the city council in Souter's hometown declined to condemn his property so that a hotel (Lost Freedom Inn...or some such) could be built. Does AL believe this taking would have passed muster?

Jen

Cathy,

Regarding pipelines, 15 U.S.C.A. ยง 717f specifically allows for condemnation to be used for locating pipelines. See paragraph (h) "Right of eminent domain for construction of pipelines, etc."

There are state statutes that provide the same powers.

noah

I agree I guess with JMH (I hope). The bill of rights were supposed to be in a sense inalienable...which means to me not subject to major political line drawing. But we have seen them do it anyway.

McCain-Feingold anyone? First they started with individual contribution limits, which have morphed into a morass of regulations administered by unelected bureaucrats and judges.

noah

I listened to Scalia talk (available on C-SPAN streaming video if you have a high speed connection). Echo the comments upthread by the intellectually disgraceful and rude behavior of some of the questioners which he had the forbearance to endure.

In response to one of the pertinent questions, he touched on the issue of stare decisis. He gave the decision that the Bill of Rights applies to the States as an example of what in his view was a bad decision which he would nevertheless uphold.

So if the states do decide to limit their takings power, then you have the irony that the States by statute are limiting their constitutional powers under the Constitution which were given to them by the Supreme Court!!

I am getting dizzy!!

cathyf

The whole point about pipelines is that pipeline companies do not (in general) use emminent domain, because it is economically inefficient. From an economic point of view, what happens in a taking is that the government sets the price at lower than the market value, and then the buyer kicks back some of the profit to the political actors. These "kickbacks" may be in the form of illegal bribes, or perfectly legal and even laudible things like donating to the local community. But they come from ripping off the sellers who are being forced to sell at less than the market price.

If the ED price is at or above the market price, then there is no reason to go through the political process at all. You can just do the deal with the sellers and keep the politicos with their outstretched palms out of it.

The reason that pipeline companies avoid ED is that the more governments that are involved in a project, the more kickback money is required, and a pipeline will go through hundreds of jurisdictions and all those politicos will suck every penny of profit from the venture long before they have been paid off enough to be satisfied.

Which would you rather deal with? Hundreds of friendly (if greedy) landowners? Or thousands of friendly & greedy politicos PLUS hundreds of angry & injured landowners? Not exactly a tough choice!

cathy :-)

noah

Which brings up another question...could a city government challenge a State imposed limitation on its power of eminent domain as established by the incorporated 5th amendment and defined by the Supreme Court? Just asking...not a lawyer but I would guess not...but I am surprised by lawyers all the time!!!!

Deoxy

AL,

Take all of the arguments you have made about how this should be left to the political process and...

Apply them to free speech.

Apply them to voting rights.

In fact, apply them to ANY other right in the Constitution, and you'll see that such a thing is NO LONGER A RIGHT. When the legislature can grant and remove such "rights", THEY AREN'T RIGHTS.

This is government choosing to allow you to have things. The WHOLE POINT of the Constitution is to provide for rights that are "inaliable" (sp?), to take these rights OUT of the hands of the legislature (and the courts, really, too, but that didn't work out).

The meaning of the 5th Amendment is clear to the average 5 year old. That the SCOTUS was following previous (BAD) precedent is no consolation. Ask Dredd Scott.

In short, the people in this country are now officially HACKED (that's the nice word), as they've seen clearly that the government basically claims the ability to redistribute land as it sees fit... and we know that it "sees fit" to distribute it to those who bribe it, with or without actual cash changing hands.

As someone else put it, the 3 pillars that pull developing countries up are rule of law, [something else - darn, can't remember], and property rights. We just got busted to 3rd world status.

More accurately, perhaps, we've just realized that it happened a while back, but either way, people who can actually read the Constitution for themselves can easily see through this mockery. Apply the same logic to free speech, and MAYBE you'll be able to see through it, too.

kim

Well, apply some of the logic and you have McCain-Feingold.
=================================

Jen

Cathy,

I don't know of the statistics on how frequently private companies use the power of eminent domain to lay pipelines. If you know of a study, I would appreciate seeing it. The reason that pipeline companies have been given the power of eminent domain, is because they asked for it because the costs of laying pipeline without would be prohibitive.

Frankly, aside from the legal interpretation, the issue of land use was addressed by Ronald Coase over 30 years in "The Problem of Social Cost".

http://people.ucsc.edu/~wittman/JLE60Coase.html

If you haven't ever read this article, it is a must. If you have read it before, I still recommend rereading it post-Kelo, with the City of New London in mind.


Ranger

I seem to recall a guy named Franklin once said something to the effect that 'No man's life, liberty, or property are safe as long as the legislature is in session.' The 5th Amendment would seem to have been a way of redressing that problem, at least until recently.

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