# Eminent domain and payback for Souter **URL:** \ **Category:** Great Debates\ **Created:** [January 23, 2006, 6:57pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282 "2006-01-23T18:57:35Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![scule](https://avatars.discourse-cdn.com/v4/letter/s/4af34b/32.png) [@scule](https://boards.straightdope.com/u/scule)\ **Post date:** [January 23, 2006, 6:57pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/1 "2006-01-23T18:57:35Z")
An [article](http://news.bbc.co.uk/2/hi/americas/4639374.stm) on the BBC News website speaks about the efforts of a group of protestors to make a claim to US Supreme Court just David Souter’s house in an attempt to, I guess, show him that his support for the ruling on eminent domain is a bad thing. It seems the activists in question are attempting to make a claim on his property so that they can build a hotel in its place. Their claim is based on the most recent US Supreme Court’s ruling on eminent domain, which from what I understand is that the government can seize privately owned land to be resold for commercial use, when in the past it could only be seized for public use. The question up for debate here is on this notion of eminent domain, and whether or not these protestors have a legitimate beef here. Is Souter’s ruling coming back to bite him in the ass, or are these people just crackpots with no case? From my perspective it looks like payback’s a bitch, but that Souter is facing his own medicine, but then I don’t know a ton about it so I’d like to hear some opinions. ---
**Author:** ![Polerius](https://avatars.discourse-cdn.com/v4/letter/p/d78d45/32.png) [@Polerius](https://boards.straightdope.com/u/Polerius)\ **Post date:** [January 23, 2006, 7:01pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/2 "2006-01-23T19:01:54Z")
> [@scule](#): > > The question up for debate here is on this notion of eminent domain, and whether or not these protestors have a legitimate beef here. Is Souter’s ruling coming back to bite him in the ass, or are these people just crackpots with no case? From my perspective it looks like payback’s a bitch, but that Souter is facing his own medicine, but then I don’t know a ton about it so I’d like to hear some opinions. I think the Supreme Court ruling was a horrible mistake, so it would be great if Souter got a taste of his own medicine. Unfortunately, in this case, it seems that these people have a negligible chance of succeeding. ---
**Author:** ![Digital\_Stimulus](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@Digital\_Stimulus](https://boards.straightdope.com/u/Digital_Stimulus)\ **Post date:** [January 23, 2006, 7:56pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/3 "2006-01-23T19:56:43Z")
That’s funny. I think the case was properly decided; it would’ve have been a case of “making law from the bench” otherwise. Now, I also think the government’s power to take private property as they see fit is a travesty, and I fully support states that are passing laws to prevent this type of eminent domain. ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [January 23, 2006, 8:06pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/4 "2006-01-23T20:06:06Z")
The case was most certain not properly decided. The constitution sanctions taking private property for public benefit, not for the private benefit of others. Regardless, I doubt the people trying to get Souter’s place will succeed, but they are not out of bounds with their effort. Depending on New Hampshire law, if the government can take private property and turn it over to another private entity because that entity’s use will result in the “public benefit” of higher taxes or increased tourism or whatever, then taking Souter’s land is perfectly legal. Hell, I bet quite a few people will go to a hotel located there. It would certainly bring in more money that the Souter farm. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [January 23, 2006, 8:08pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/5 "2006-01-23T20:08:43Z")
> [@Renob](#): > > The case was most certain not properly decided. The constitution sanctions taking private property for public benefit, not for the private benefit of others. Well, if you say so, it has to be true. :rolleyes: There’s room for disagreement on this point (I think the case was rightly decided on both legal and political grounds). So quit declaiming your answer from the rooftops. Make your argument. –Cliffy ---
**Author:** ![Digital\_Stimulus](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@Digital\_Stimulus](https://boards.straightdope.com/u/Digital_Stimulus)\ **Post date:** [January 23, 2006, 8:11pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/6 "2006-01-23T20:11:47Z")
> [@Renob](#): > > The case was most certain not properly decided. The constitution sanctions taking private property for public benefit, not for the private benefit of others. Look, I _abhor_ this decision, but still feel it was properly decided. (“Legal” not being the equivalent of “moral” or “right”.) Could you define “public benefit” as it’s used in the Constitution? That’s the root of the issue… ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [January 23, 2006, 8:26pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/7 "2006-01-23T20:26:24Z")
> [@Digital Stimulus](#): > > Look, I _abhor_ this decision, but still feel it was properly decided. (“Legal” not being the equivalent of “moral” or “right”.) I fully realize that. I do not think it’s a good legal decision besides being immoral > [@](#): > > Could you define “public benefit” as it’s used in the Constitution? That’s the root of the issue… Of course. The Bill of rights says no private property shall be taken for public use without compensation. Public use means for governmental purposes such as roads, government buildings, etc. If you redefine that to mean anything the government thinks is useful (private residences, shopping malls, etc.), then you have effectively made “public use” mean nothing. If private condominiums is a public use, what isn’t a public use? The word is rendered meaningless. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [January 23, 2006, 8:39pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/8 "2006-01-23T20:39:17Z")
> [@Digital Stimulus](#): > > That’s funny. I think the case was properly decided; it would’ve have been a case of “making law from the bench” otherwise. > > Now, I also think the government’s power to take private property as they see fit is a travesty, and I fully support states that are passing laws to prevent this type of eminent domain. Read the Fifth Amendment (no, not the self-incrimination element, there’s more) and the Fourteenth. There’s a useful clause there you may have missed. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [January 23, 2006, 8:41pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/9 "2006-01-23T20:41:38Z")
> [@Cliffy](#): > > Well, if you say so, it has to be true. :rolleyes: > > There’s room for disagreement on this point (I think the case was rightly decided on both legal and political grounds). So quit declaiming your answer from the rooftops. Make your argument. > > –Cliffy What you’re effectively arguing is that government should have the right to take any property, any time, for any reason. If you honestly think that is consistent with a constitution that seeks to defend life, liberty, and the pursuit of happiness, and a constitution that makes specific mention of property rights, then I don’t know what to think. You really think Madison would have been cheering on Joseph Stalin? ---
**Author:** ![Digital\_Stimulus](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@Digital\_Stimulus](https://boards.straightdope.com/u/Digital_Stimulus)\ **Post date:** [January 23, 2006, 8:52pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/10 "2006-01-23T20:52:41Z")
From [FindLaw](http://caselaw.lp.findlaw.com/data/constitution/amendment05/14.html): > [@](#): > > The Supreme Court has approved generally the widespread use of the power of eminent domain by federal and state governments in conjunction with private companies to facilitate urban renewal, destruction of slums, erection of low-cost housing in place of deteriorated housing, and the promotion of aesthetic values as well as economic ones. In Berman v. Parker, 186 a unanimous Court ob served: ‘‘The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.’’ For ‘‘public use,’’ then, it may well be that ‘‘public interest’’ or ‘‘public welfare’’ is the more correct phrase. This is done in deference to legislative bodies. As I said, I fully support states that are passing laws to limit this type of travesty. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [January 23, 2006, 8:58pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/11 "2006-01-23T20:58:16Z")
> [@Martin Hyde](#): > > You really think Madison would have been cheering on Joseph Stalin? Stalin did not have to pay compensation to the owners. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [January 23, 2006, 9:01pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/12 "2006-01-23T21:01:38Z")
> [@Digital Stimulus](#): > > Could you define “public benefit” as it’s used in the Constitution? No, I cannot, for the same reason I cannot define “tachyon field fluctuation” as it’s used in the Constitution – i.e. that phrase is NOT IN THE FREAKING CONTSITUTION. The court read that the words “public benefit” in place of the actual words “public use”. Their decision on that basis is not merely wrong, but insupportable. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [January 23, 2006, 9:03pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/13 "2006-01-23T21:03:04Z")
> [@Renob](#): > > The Bill of rights says no private property shall be taken for public use without compensation. Public use means for governmental purposes such as roads, government buildings, etc. If you redefine that to mean anything the government thinks is useful (private residences, shopping malls, etc.), then you have effectively made “public use” mean nothing. If private condominiums is a public use, what isn’t a public use? The word is rendered meaningless. So? Remember, **every** government has eminent domain power. It is one of the defining attributes of sovereignty. The Fifth Amendment is not the **basis** for that power of the federal government nor of the states. It merely sets a limit on it by saying such takings must be compensated. But that’s the **only** limit it sets. We cannot look to the language of the Fifth Amendment for guidance on what does or does not constitute “public use”; the Amendment was never intended to address that. > **[Eminent domain](https://en.wikipedia.org/wiki/Eminent_domain#Origins:)** > > Eminent domain (United States, Philippines), land acquisition (India, Malaysia, Singapore), compulsory purchase/acquisition (Australia, New Zealand, Republic of Ireland, United Kingdom), resumption (Hong Kong, Uganda), resumption/compulsory acquisition (Australia, New Zealand, Republic of Ireland, United Kingdom), or expropriation (France, Italy, Mexico, South Africa, Canada, Brazil, Portugal, Spain, Chile, Denmark, Norway, Sweden, Finland, Germany, Greece, Panama, Poland, Russia) is the po The m... > [@](#): > > The power of eminent domain in English law derives from the form of real property. Many landowners assume that their property right is absolute under the law, but this is rarely the case. Instead, a county or other authority has created the property in fee simple, a concept that derives from feudal fiefs. The same authority may void (or condemn) the fee and seize the land, as when a landowner fails to pay property tax. According to William Blackstone, > > “The reason of originally granting out this complicated kind of interest, so that the same man shall, with regard to the same land, be at one and the same time tenant in fee-simple and also tenant at the lord’s will, seems to have arisen from the nature of villenage tenure. … Though they were willing to enlarge the interest of their villeins, by granting them estates which might endure for their lives, or sometimes by descendible to their issue, yet did not care to manumit them entirely; and for that reason it seems to have been contrived, that a power of resumption at the will of the lord, should be annexed to these grants, whereby the tenants were still kept in a state of villenage, and no freehold at all was conveyed to them in their respective lands.” > > English-speaking countries that never had the feudal system have perpetuated the system of fee-simple property, including the power of eminent domain, for legal continuity. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [January 23, 2006, 9:03pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/14 "2006-01-23T21:03:43Z")
> [@](#): > > For ‘‘public use,’’ then, it may well be that ‘‘public interest’’ or ‘‘public welfare’’ is the more correct phrase. This decision is slightly more honest than _Kelo_ in that the Court openly admitted that it was simply making stuff up rather than adhering to the words of the Constitution. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [January 23, 2006, 9:05pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/15 "2006-01-23T21:05:45Z")
> [@Steve MB](#): > > This decision is slightly more honest than _Kelo_ in that the Court openly admitted that it was simply making stuff up rather than adhering to the words of the Constitution. But, the words of the Constitution are irrelevant. See above. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [January 23, 2006, 9:06pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/16 "2006-01-23T21:06:40Z")
> [@Renob](#): > > IPublic use means for governmental purposes such as roads, government buildings, etc. Uh, cite? **Martin** , **BrainGlutton** has the correct answer. The Fifth Amendment requires that compensation be paid for any takings. Given my understanding of the Framers’ respect for property rights, I think they’d be on board with this idea – their fear was not the government taking land; their fear was the government _stealing_ land. And you know how I know that? Because I read the Constitution, where they protected against one but not the other. See how I did that without the ad hominem attacks? –Cliffy ---
**Author:** ![Jackmannii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackmannii/32/311_2.png) [@Jackmannii](https://boards.straightdope.com/u/Jackmannii)\ **Post date:** [January 23, 2006, 9:11pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/17 "2006-01-23T21:11:25Z")
As much as I disagree with the recent Supreme Court ruling, taking a Justice’s land as punishment is a) wrong, and b) has no chance of ultimately succeeding. It might be interesting, though, if some endangered slime mold has found a niche on the Souter property… ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [January 23, 2006, 9:16pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/18 "2006-01-23T21:16:19Z")
The relevent text from the constitution is: > [@](#): > > nor shall any person be… deprived of … property, without due process of law; nor shall private property be taken for public use, without just compensation. Note, the requirement for government seizing property is not public use but is due process of law. ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [January 23, 2006, 9:18pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/19 "2006-01-23T21:18:04Z")
> [@BrainGlutton](#): > > So? Remember, **every** government has eminent domain power. It is one of the defining attributes of sovereignty. The Fifth Amendment is not the **basis** for that power of the federal government nor of the states. It merely sets a limit on it by saying such takings must be compensated. But that’s the **only** limit it sets. Wrong. It also limits the takings for a public use. Those words have meaning. If any use the government decides on is “public,” then those words are meaningless. > [@](#): > > We cannot look to the language of the Fifth Amendment for guidance on what does or does not constitute “public use”; the Amendment was never intended to address that. The words obviously have meaning, though. “Public” does not mean “private.” If the framers wanted the open-ended power you seem to support, then why did they only say that takings can be for public use? It reminds me of the expansive definition of “interstate commerce.” Under the definition in use today, every action is “interstate commerce,” just as every use of property is now “public use.” ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [January 23, 2006, 9:20pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/20 "2006-01-23T21:20:24Z")
> [@treis](#): > > The relevent text from the constitution is: > > Note, the requirement for government seizing property is not public use but is due process of law. Only if the taking is uncompensated, as a criminal punishment (e.g., a fine). That provision is severable from the clause following. [Next page](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282.md?page=2)