Marcy,
I'm surprised to hear that you believe Kelo was a correct decision, and curious about your reasoning. I'm guessing you do not believe it to be correct under libertarian principles for governments to take private property and give it to a third party, so you must mean that you believe the decision was a correct reading of the Constitution.
The Fifth Amendment to the Constitution reads, "...nor shall private property be taken for public use without just compensation." I would argue that this language implicitly suggests that the signers did not want private property to be taken for private use, since they made no provision to address such takings.
Of course the Fifth Amendment only addresses takings *without* just compensation. If just compensation (which I would interpret as meaning the market value of the property) *is* provided, you could make the argument that taking property and giving it to a third party for the purpose of putting it to a more intensive use would pass muster on the grounds that the increased property tax to be derived from the new owners constitutes a "public use" of the property.
But this still runs up against the Fourth Amendment, which reads in part that "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated." I would argue that taking someone's private property against his or her will for the private use of a third party, even if the public treasury does benefit, is an *inherently unreasonable seizure* if the person whose property is seized has committed no crime.
Further, I would argue that such action is prohibited by the Ninth Amendment, which reads, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Clearly the framers wanted U.S. citizens to have *some* security of private property, else why would they have written the Fourth and Fifth amendment clauses noted above? If it were constitutional to take private property and give it to a third party any time a government could thereby increase its tax revenues, then people would have virtually no security in their possessions, as any property could be taken any time another person had a more lucrative use for it. In the case of land that sounds somewhat Georgist and therefore perhaps defensible on geo-libertarian grounds, but the Constitution does not just deal with "land" specifically, but rather covers all "private property" and "effects."
If you nevertheless believe that Kelo was the correct decision, is it because you believe that the Bill of Rights limits only the federal government, and not the state governments? In other words, would it be constitutional for the State of California to take away your firearms, deny you free speech, establish celebrity-worship as the state religion, impose cruel and unusual punishments upon you, etc., so long as such actions were not prohibited by the state Constitution? Such a position is a huge practical concession from a libertarian standpoint -- suddenly instead of a Congress and 3/4 of state legislatures having to pass an amendment in order to legally violate the rights of Americans to free speech, self defense, due process, etc., such violations could legally occur at the state level, even by popular initiative in California.
I would hold such actions by a state to be in violation of the U.S. Constitution, because that constitution prohibits states from taking any rights-limiting action against citizens which the federal government is prohibited from taking. This prohibition can be found in Article IV, Section 2 of the Constitution, which reads in part, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States," and by the Fourteenth Amendment, which states in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
But as I said, I am curious to hear how you see it.
Yours in liberty,
<<< Starchild >>>
Hi All,
I am in the distinct minority, since I believe that Kelo was the correct decision, and there should be more decisions pushing the *States* into taking responsibility for its citizens' civil liberties (ring a bell in connection with our current struggle to find a locally controlled civil liberty issue?). Thus, I would love to see the LPSF involved in the Tom McClintock proposal. If you would like to contact Jay Eckl, please do. Or please offer your ideas on how we can help Tom McClintock as a group.
Regards,
Marcy
From: Daniel Wiener
To: countyofficers@ca.lp.org
Cc: Executive Committee
Sent: Saturday, December 17, 2005 10:07 AM
Subject: [LPC County Officers] Kelo push-backAs a result of the Kelo v. City of New London U.S. Supreme Court decision back in June, the Fifth Amendment limitations upon government "takings" of private property have been virtually obliterated. The Libertarian Party of California has formed a committee chaired by Jay Eckl to coordinate libertarian counter-measures here in California. Anyone who wants to get involved is urged to contact Jay at Jae4free@aol.com.
The LPC Executive Committee has also passed the following resolution:
Whereas the U.S. Supreme Court in "Kelo v. City of New London" failed to uphold the Fifth Amendment limitations on goverment takings of private property and instead further opened the door to widespread abuse of individual rights via eminent domain proceedings, therefore, be it
Resolved that the Libertarian Party of California strongly endorses "The Homeowners & Private Property Protection Act of 2006" authored by California State Senator Tom McClintock and urges all Californians to sign the initiative petition and vote in favor of the measure's passage.
The "Homeowners & Private Property Protection Act of 2006" was recently submitted to the Secretary of State's office for an official ballot title and summary. It should be available soon for circulation. The proponents, in addition to Tom McClintock, are Jon Coupal of the Howard Jarvis Taxpayers Association and Orange County Supervisor Chris Norby. The text of the initiative measure is available at 2006 Initiatives - Tom Mcclintock and is also attached below.
Daniel Wiener
CA_Secretary@LibertarianParty.infoThe Homeowners & Private Property Protection Act of 2006
A State Constitutional Amendment Initiative Filed by
Senator Tom McClintock
<image.tiff>
SECTION 1. TITLE
This measure shall be known and may be cited as "The Homeowners & Private Property Protection Act of 2006."
SECTION 2. STATEMENT OF FINDINGS
\(a\) Our California State Constitution provides that all people have inalienable rights including the acquisition, possession and protection of property, and that no person shall be deprived of property without due process of law\. \(b\) Our California State Constitution further provides that private property may not be taken or damaged by government except for public use and only after just compensation has been paid to the property owner\. \(c\) Notwithstanding these clear constitutional guarantees, state and federal courts have not protected these rights from encroachment by state and local governments through the exercise of their powers to take private property for the use or gain of another private owner or owners\. \(d\) The decision of the United States Supreme Court \(Kelo v\. City of New London\) on June 23, 2005 permitted a city to exercise its power of eminent domain to take private property for the purpose of transferring ownership to a private developer, which means that Californians no longer have any federal protection against their property being taken for the private gain of others\. \(e\) Furthermore, the judicial processes available to an owner of property to obtain just compensation when property is taken for a legitimate public use are burdensome, costly and unfair\.SECTION 3. STATEMENT OF PURPOSE
\(a\) State and local government shall be limited to using its powers to take private property only for public uses, such as roads, schools, parks, and public facilities\. Private property must not be taken from one owner and given to another private owner for any reason unless the original owner is a willing seller\. \(b\) When state or local government takes private property for public purposes, the owner shall receive just compensation for what has been taken or damaged\. If the owner and the government are unable to agree to a fair price, the owner shall be entitled to a fair and efficient judicial process to determine the appropriate amount for the government to pay as determined by a jury\.SECTION 4. AMENDMENT TO CALIFORNIA CONSTITUTION
Section 19 of Article I thereof is amended to read:
SEC. 19
(a) Private property may be taken or damaged only for a stated public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. Private property shall not be taken or damaged without the consent of the owner for purposes of economic development, increasing tax revenue, or for any other private use, nor for maintaining the present use by a different owner. The Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon deposit in court and prompt release to the owner and any lessee of money determined by the court to be the probable amount of just compensation.
(1) "Just compensation" includes, but is not limited to, the cost of acquiring comparable property; all costs and losses incurred due to the condemnation including, but not limited to, loss of income, loss of business good will, and relocation costs; and attorney fees upon determination that the amount offered by the public agency was less than the amount ascertained by the jury, or the court if a jury is waived.
(2) Possession of the money so deposited may be taken without prejudicing the right to challenge the amount of compensation.
(b) Property taken by eminent domain shall be owned and occupied by the condemnor, or by another governmental agency by agreement with the condemnor, or leased to entities that are regulated by the Public Utilities Commission. All property that is taken by eminent domain shall be used only for the public use stated at the time of the taking, except for limited purposes, public or private, that are incidental to that use.
(c) When property taken by eminent domain ceases to be used as stated at the time of the taking, or fails to be put to that use within ten years, the former owner shall have the right to acquire the property at fair market value. Notwithstanding subdivision (a) of Section 2 of Article XIIIA, upon reacquisition the property shall be appraised by the assessor for purposes of property taxation at its base year value, with any authorized adjustments, as had been last determined in accordance with Article XIIIA at the time the property was acquired by the condemnor.
(d) In any action by a property owner and/or lessee challenging the validity of a taking under this section, the property owner and/or lessee shall not be limited to review of the administrative record and the court shall not afford deference to any legislative finding by the condemnor. The property owner and/or lessee shall be entitled to an award of attorney fees from the condemnor if the court finds that the condemnor's actions are not in compliance with this section.
(e) This section does not apply to asset forfeiture upon conviction of a crime in a manner prescribed by law.
SECTION 5. IMPLEMENTATION AND AMENDMENT
This section shall be self-executing and shall apply to all condemnation actions commenced or pending after June 23, 2005. The Legislature may adopt laws to further the purposes of this section and aid in its implementation. No amendment to this section may be made except by a vote of the people pursuant to Article II or Article > XVIII.
SECTION 6. SEVERABILITY
The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
_______________________________________________
Countyofficers mailing list
Countyofficers@ca.lp.org
http://ca.lp.org/mailman/listinfo/countyofficers_ca.lp.org
<image.tiff>
YAHOO! GROUPS LINKS
+ Visit your group "lpsf-activists" on the web.
+ To unsubscribe from this group, send an email to:
lpsf-activists-unsubscribe@yahoogroups.com+ Your use of Yahoo! Groups is subject to the Yahoo! Terms of Service.
<image.tiff>