By Matt Gonzalez<\/p>\n
“[N]or shall private property be taken for public use, without just compensation.\u00e2\u20ac\u009d US Constitution, 5th Amendment, Takings Clause<\/p>\n
When James Madison wrote the \u00e2\u20ac\u0153takings clause\u00e2\u20ac\u009d he couldn\u00e2\u20ac\u2122t have expected courts would misread it in subsequent years.\u00c2\u00a0 Madison plainly wrote that only a \u00e2\u20ac\u0153public use\u00e2\u20ac\u009d would justify taking private property by government, but courts have found that takings resulting in a \u00e2\u20ac\u0153public benefit\u00e2\u20ac\u009d meet those criteria.\u00c2\u00a0 This reading falls far from its origins.<\/p>\n
Various Magna Carta clauses gave birth to due process rights, resulting from King John\u00e2\u20ac\u2122s abusive 13th century reign in England, including section 39, which addresses takings:<\/p>\n
\u00e2\u20ac\u0153No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.\u00e2\u20ac\u009d<\/p>\n
Chaos forced John to make concessions. He had legitimacy problems stemming from the death of his brother and claims to the throne by a nephew, Arthur of Brittany. Bishops agitated for rights in selecting the Archbishop of Canterbury; and he lost Normandy in a failed war against France, levying heavy taxes in the process.Rebelling barons, tired of his abuses, asserted rights, forever altering the throne\u00e2\u20ac\u2122s power. Consequently, due process, grand juries and eminent domain protections were codified on June 15, 1215, near London, when John affixed his seal to Magna Carta.<\/p>\n
Our founders incorporated eminent domain constraints in the US Constitution, but subsequent legal decisions have negated those recognized customs.<\/p>\n
The Supreme Court ruled in Boston & Roxbury Mill Corp. v. Newman (1832) that a private mill company could flood a neighbor\u00e2\u20ac\u2122s property while building a new industrial area because it served a public benefit, though the government did not directly use the property.<\/p>\n
Berman v. Parker (1954), held that so-called \u00e2\u20ac\u0153blighted\u00e2\u20ac\u009d structures could be razed as part of a revitalization plan for the District of Columbia. Even non-blighted property could be forfeited in furtherance of a plan allowing private developers to build office space and a shopping center.<\/p>\n
In Kelo v. City of New London (2005), our Supreme Court allowed a Connecticut city\u00e2\u20ac\u2122s claim that new jobs and increased tax revenue were sufficient to justify takings of private homes. Justice O\u00e2\u20ac\u2122Connor rightfully noted the decision effectively deleted the words \u00e2\u20ac\u02dcfor public use\u00e2\u20ac\u2122 from the Constitution.<\/p>\n
Often justifications for takings never materialize. Only 3 of 80 factories the Boston & Roxbury Mill Dam was to attract were ever built. And the Kelo development has yet to break ground.<\/p>\n
The question is what to do if the building of any shopping center can justify the taking of private property?<\/p>\n
California voters have considered two statewide propositions since Kelo, yet problems persist.<\/p>\n
Voters properly rejected the expansive Proposition 9 (2006) mandating compensation if any state action caused economic loss, while voters passed Proposition 99 (2008), which prohibited residential takings for conveyance to another private person. However, the measure created a new \u00e2\u20ac\u0153blight\u00e2\u20ac\u009d analysis allowing takings in instances of \u00e2\u20ac\u0153public health and safety\u00e2\u20ac\u009d and \u00e2\u20ac\u0153preventing serious, repeated, criminal activity.\u00e2\u20ac\u009d Seemingly clear, these terms are no more likely to keep their meaning than Madison\u00e2\u20ac\u2122s \u00e2\u20ac\u0153public use\u00e2\u20ac\u009d was.<\/p>\n
California\u00e2\u20ac\u2122s Constitution should be modified:<\/p>\n
–Define \u00e2\u20ac\u0153public use\u00e2\u20ac\u009d narrowly to exclude \u00e2\u20ac\u0153public benefit\u00e2\u20ac\u009d, disavowing takings for all private development. South Dakota does this.<\/p>\n
–Require any taking be the \u00e2\u20ac\u0153least disruptive\u00e2\u20ac\u009d to achieve the desired public use; meaning no other reasonable alternative to the taking exists.<\/p>\n
–Mandate compensation be 150% of the property\u00e2\u20ac\u2122s assessed market value. Adding a substantial sum to what must be paid disincentivizes government takings. Missouri and Indiana require a minimum of 125% be paid. Kansas requires 200% in some cases.<\/p>\n
Governments have a way of encroaching on rights, even settled ones.\u00c2\u00a0 The Patriot Act, Military Commissions Act, and Foreign Intelligence Surveillance Act are other examples of this. Vigilance is necessary if we\u00e2\u20ac\u2122re to benefit from past civil rights struggles.<\/p>\n","protected":false},"excerpt":{"rendered":"
By Matt Gonzalez “[N]or shall private property be taken for public use, without just compensation.\u00e2\u20ac\u009d US Constitution, 5th Amendment, Takings Clause When James Madison wrote the \u00e2\u20ac\u0153takings clause\u00e2\u20ac\u009d he couldn\u00e2\u20ac\u2122t have expected courts would misread it in subsequent years.\u00c2\u00a0 Madison plainly wrote that only a \u00e2\u20ac\u0153public use\u00e2\u20ac\u009d would justify taking private property by government, but […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/www.argonaut360.com\/index.php?rest_route=\/wp\/v2\/posts\/144"}],"collection":[{"href":"https:\/\/www.argonaut360.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.argonaut360.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.argonaut360.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.argonaut360.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=144"}],"version-history":[{"count":0,"href":"https:\/\/www.argonaut360.com\/index.php?rest_route=\/wp\/v2\/posts\/144\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.argonaut360.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=144"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.argonaut360.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=144"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.argonaut360.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=144"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}