# 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:** 2
**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, 9:24pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/21 "2006-01-23T21:24:18Z")
> [@Renob](#): > > Wrong. It also limits the takings for a public use. No, it simply assumes the taking will be for public use – by definition. Remember, the Fifth Amendment did not **create** government’s eminent domain power. The Framers did not even trouble to include it in the enumerated powers of Congress. Because it was simply assumed; everybody knew and understood that a government that can’t condemn private property is no government at all. If you need constitutional sanction for it, look to the “necessary and implied powers” clause. ---
**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, 9:28pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/22 "2006-01-23T21:28:06Z")
> [@BrainGlutton](#): > > Only if the taking is uncompensated, as a criminal punishment (e.g., a fine). That provision is severable from the clause following. Precisely. The straightforward reading of the takings clauses are that they admit of two cases: 1. The government confiscates property as a legal sanction. This requires due process of law. 2. The government takes property for public use. This requires compensation. Neither case covers the government taking Joe Blow’s property in order to give it to John Doe simply because Mr. Doe offers more bribes, er, campaign contributions, er property taxes than Mr. Blow. ---
**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, 9:30pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/23 "2006-01-23T21:30:20Z")
> [@BrainGlutton](#): > > Only if the taking is uncompensated, as a criminal punishment (e.g., a fine). That provision is severable from the clause following. I didn’t mean to imply that the clause was seperable. Certainly if the government takes property they are required to give just compensation. My reading of the amendment is that the test for taking property is due process not public use. The just compensation portion of the amendment does not refer to what circumstances the government may take property rather it speaks to what the government must do when they take that property. On Preview: I see that you are arguing the same thing I am. ---
**Author:** ![mswas](https://avatars.discourse-cdn.com/v4/letter/m/e99b99/32.png) [@mswas](https://boards.straightdope.com/u/mswas)\ **Post date:** [January 23, 2006, 9:31pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/24 "2006-01-23T21:31:16Z")
I could have sworn that Congress passed a law shortly after this so that it wuoldn’t be so Draconian. Am I wrong? I thought it was addressed. Erek ---
**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, 9:35pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/25 "2006-01-23T21:35:51Z")
> [@Steve MB](#): > > Precisely. The straightforward reading of the takings clauses are that they admit of two cases: > > 1. The government confiscates property as a legal sanction. This requires due process of law. > 2. The government takes property for public use. This requires compensation. > > Neither case covers the government taking Joe Blow’s property in order to give it to John Doe simply because Mr. Doe offers more bribes, er, campaign contributions, er property taxes than Mr. Blow. No. But neither clause forbids it, either. This was something government – including the colonial governments as well as the Crown – had the power to do before the U.S. Constitution ever was thought of. ---
**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, 9:37pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/26 "2006-01-23T21:37:10Z")
> [@treis](#): > > I didn’t mean to imply that the clause was seperable. Certainly if the government takes property they are required to give just compensation. My reading of the amendment is that the test for taking property is due process not public use. The just compensation portion of the amendment does not refer to what circumstances the government may take property rather it speaks to what the government must do when they take that property. > > On Preview: I see that you are arguing the same thing I am. No. There is no “due process of law” mandated for eminent domain condemnations; the phrase, at least in this context, applies only to criminal prosecutions. ---
**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, 9:39pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/27 "2006-01-23T21:39:06Z")
> [@Steve MB](#): > > Precisely. The straightforward reading of the takings clauses are that they admit of two cases: > > 1. The government confiscates property as a legal sanction. This requires due process of law. > 2. The government takes property for public use. This requires compensation. > > Neither case covers the government taking Joe Blow’s property in order to give it to John Doe simply because Mr. Doe offers more bribes, er, campaign contributions, er property taxes than Mr. Blow. If neither case covers the government taking Joe Blow’s property then how in the world does this admendment stand in the way of States using eminent domain? ---
**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, 9:41pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/28 "2006-01-23T21:41:19Z")
> [@BrainGlutton](#): > > No. There is no “due process of law” mandated for eminent domain condemnations; the phrase, at least in this context, applies only to criminal prosecutions. I don’t see anything in that amendment that limits its provisions to criminal prosecutions. On what basis are you claiming a restriction to criminal prosecutions? ---
**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, 9:46pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/29 "2006-01-23T21:46:30Z")
> [@treis](#): > > I don’t see anything in that amendment that limits its provisions to criminal prosecutions. On what basis are you claiming a restriction to criminal prosecutions? Severable clauses, like I said. The “due process of law” phrase is used in connection with deprivation of “life, liberty or property” – clearly it’s discussing criminal sanctions, and in that context, compensation for the seized property makes no sense at all. ---
**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, 9:50pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/30 "2006-01-23T21:50:09Z")
> [@BrainGlutton](#): > > No. There is no “due process of law” mandated for eminent domain condemnations; the phrase, at least in this context, applies only to criminal prosecutions. I fail to see how you reason this. The text prohibits “the taking of life, liberty, or property without due process of law.” In one case many of us are familiar with, _First English Lutheran Church vs. California Coastal Commission_, the regulations imposed by the Commission were such as to prohibit the church’s governing body from making any reasonable use of its land, and hence constituted a “taking” under the law. This was not a criminal action but a zoning regulation in support of environmental/scenic goals. To be sure, the taking of “life” or “liberty” is generally an element of a criminal prosecution (though I can recall one case in my own experience in which someone was jailed on a civil contempt proceeding; I was working for the local Sheriff’s Department which ran the jail at the time). But the taking of property is a clear element of everything from fines to court judgments to eminent domain to the imposition of permit.license fees by regulation in accordance with statute. The County Clerk does not have the right to charge you $20 to file your legal paper in his/her official archives as a matter of divine revelation; he or she is given the power to impose that fee by virtue of a statute and probably by regulations adopted in accordance with that statute – ergo, “due process of law.” ---
**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, 9:57pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/31 "2006-01-23T21:57:00Z")
> [@Polycarp](#): > > I fail to see how you reason this. The text prohibits “the taking of life, liberty, or property without due process of law.” In one case many of us are familiar with, _First English Lutheran Church vs. California Coastal Commission_, the regulations imposed by the Commission were such as to prohibit the church’s governing body from making any reasonable use of its land, and hence constituted a “taking” under the law. This was not a criminal action but a zoning regulation in support of environmental/scenic goals. Was the availability or lack of “due process” a dispositive element in that case? > [@Polycarp](#): > > The County Clerk does not have the right to charge you $20 to file your legal paper in his/her official archives as a matter of divine revelation; he or she is given the power to impose that fee by virtue of a statute and probably by regulations adopted in accordance with that statute – ergo, “due process of law.” Of course. But statutory authority, while generally required for government action of any kind, is not what “due process of law” means. See [http://en.wikipedia.org/wiki/Due\_process\_of\_law](http://en.wikipedia.org/wiki/Due_process_of_law). I.e., while a state agency cannot condemn your property without some statutory authority to do so, it is not required to afford you a “condemnation trial” before the condemnation is effective. You can sue to block the condemnation, but **you** have to take the initiative. ---
**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, 10:00pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/32 "2006-01-23T22:00:12Z")
> [@BrainGlutton](#): > > Severable clauses, like I said. The “due process of law” phrase is used in connection with deprivation of “life, liberty or property” – clearly it’s discussing criminal sanctions, and in that context, compensation for the seized property makes no sense at all. I don’t see how it discusses criminal sanctions at all, let alone clearly. It means exactly what it says and that is there must be due process to deprive someone of life, liberty or property. Under this admentment it is never permissable, not just in criminal proceedings, for the government to deny me my property or liberty. For example, a police officer can’t simply deny me access to my house on a whim. He is acting outside of the due process of law and is thus in violation of this admendment. ---
**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, 10:06pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/33 "2006-01-23T22:06:54Z")
In eminent domain cases, you are correct. The onus of proof is on the person objecting to the taking by eminent domain, IIRC. In _First English_, the issue was that the regulations prohibiting construction were so stringent as to effect a “taking” of the land for the governmental purposes of environmental and scenic protection, as opposed to the church’s desire to rebuilt its fire-ravaged sanctuary on the same site. There was no eminent domain action, but rather a decision that government-imposed rules which made it impossible to use the land for any private use whatsoever constituted a “taking” under the 5th and 14th Amendments equivalent to an eminent domain action but without any just compensation. ---
**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, 10:21pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/34 "2006-01-23T22:21:00Z")
> [@BrainGlutton](#): > > Severable clauses, like I said. The “due process of law” phrase is used in connection with deprivation of “life, liberty or property” – clearly it’s discussing criminal sanctions, and in that context, compensation for the seized property makes no sense at all. Crud. I was all set to let you do all my arguing for me, because you’d gotten things right in the first half of the thread. But this is dead wrong. Unlike the question at issue in this thread, your position is not only wrong, it’s not even arguably correct. It’s just wrong. You’re right that the Due Process language is used in connection with the deprivation of “life, liberty, or property,” but there’s nothing in the Constitution or 200+ years of practice to suggest that means only w/r/t criminal sanctions. 'Cuz it doesn’t. The Government may not take any action depriving someone of life, liberty or property without due process. –Cliffy ---
**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, 10:30pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/35 "2006-01-23T22:30:29Z")
**Cliffy** : Now define “due process.” 😃 ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [January 24, 2006, 1:43am UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/36 "2006-01-24T01:43:05Z")
> [@Cliffy](#): > > Crud. I was all set to let you do all my arguing for me, because you’d gotten things right in the first half of the thread. But this is dead wrong. Unlike the question at issue in this thread, your position is not only wrong, it’s not even arguably correct. It’s just wrong. You’re right that the Due Process language is used in connection with the deprivation of “life, liberty, or property,” but there’s nothing in the Constitution or 200+ years of practice to suggest that means only w/r/t criminal sanctions. 'Cuz it doesn’t. The Government may not take any action depriving someone of life, liberty or property without due process. > > –Cliffy The key word here is “deprived,” as opposed to “taken.” If, after a trial by due process of law, you are convicted of a crime and levied a $50,000 fine, you have been deprived of it. If the city condemns your real property to build a road and assesses $50,000 as its fair market value (an assessment you would have standing to contest), and pays you that sum, you have suffered a taking but you have not been deprived. In the latter case, note, the city does not have to serve you with process and set a court date to prove it needs the property for purpose x, etc., or that $50,000 is FMV; you can contest the decision, but that’s up to you. The condemnation decision, IOW, does not require “due process of law” as the phrase is used in the first clause of the 5th Amendment. ---
**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 24, 2006, 1:50am UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/37 "2006-01-24T01:50:25Z")
> [@Steve MB](#): > > 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. Surely you can recognize that I was quoting **Renob** without resorting to shouting. You are correct, of course, that “public benefit” can’t be found – I assumed that the phrase used was an accurate quote and simply re-quoted it myself. It seems to me – in fact, I can say that it is most decidedly the case – that it can be argued that the phrase “public use” is synonymous with “public benefit”. To reitereate, because arguing on the side I am makes me feel dirty, I detest this decision. However, IMHO, the same argument underlies univeral health care, welfare, etc., etc. Working towards economic propsperity is indeed a government function; many things that deprive citizens of property (e.g., money) are in fulfillment of government functions (read that: _intangibles_). Given that, and barring the existence of any laws that place limits on (or provide a definition of) “public use”, I think this case was decided correctly. And that’s not even taking into account **BrainGlutton** ’s point about “intent”. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 24, 2006, 8:42am UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/38 "2006-01-24T08:42:25Z")
> [@Digital Stimulus](#): > > Surely you can recognize that I was quoting **Renob** without resorting to shouting. You are correct, of course, that “public benefit” can’t be found – I assumed that the phrase used was an accurate quote and simply re-quoted it myself. > > It seems to me – in fact, I can say that it is most decidedly the case – that it can be argued that the phrase “public use” is synonymous with “public benefit”. To reitereate, because arguing on the side I am makes me feel dirty, I detest this decision. However, IMHO, the same argument underlies univeral health care, welfare, etc., etc. Working towards economic propsperity is indeed a government function; many things that deprive citizens of property (e.g., money) are in fulfillment of government functions (read that: _intangibles_). Given that, and barring the existence of any laws that place limits on (or provide a definition of) “public use”, I think this case was decided correctly. > > And that’s not even taking into account **BrainGlutton** ’s point about “intent”. And that would be in keeping with SCOTUS’s view of eminant domain re: blight. The problem with _Kelo_ is that it allows so much freedom for government to determine public benefit that the State of California could use it **to seize almost every private residence in the state**. Why? Property taxes in Calif. are based on the purchase price of the house. If the state takes the property and resells it for more than the original buyer bought it for, property taxes go up and the state can pay off its huge deficit (public benefit). For those of you who think that this is a slippery slope, please point out anything in _Kelo_ that would prohibit this? ---
**Author:** ![elfkin477](https://avatars.discourse-cdn.com/v4/letter/e/a9a28c/32.png) [@elfkin477](https://boards.straightdope.com/u/elfkin477)\ **Post date:** [January 24, 2006, 9:04am UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/39 "2006-01-24T09:04:44Z")
> [@scule](#): > > 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 it’s a horrible ruling, and it’s one of the few things that validates my father’s ranting about the judicial system having too much power, with which they assume to create or drastically change laws rather than just rule on their validity. It is clear to most people that upscale housing complexes were not what the founders had in mind when they mentioned public use. Can anyone argue that a private home in any way fits the definition of something for “public use”? I don’t think that the people making this push will succeed (but this is NH, so they’ve got more than a snowball’s chance in hell - _and_ it’s going to public vote, after all) but I’d like them to. It might make people considering using this law for their personal enrichment consider the consequences if even a US supreme court judge isn’t safe from backlash. Actually, I’ll be honest. If the Lost Liberty Hotel is made, I’ll be vacationing there at least once. ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [January 24, 2006, 12:05pm UTC](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282/40 "2006-01-24T12:05:59Z")
But it could be the case that Souter doesn’t even care much about his home. I’ve heard people argue that eminent domain is fair conceptually for no reason other than the remunerative component; i.e., you’re getting fair market value for your home, so kwitcher bitchin. Thus, the only way this hurts Souter is if the home was Souter’s great grandfather’s or something, and is filled with priceless childhood and family memories — the equivalent of taking the only existent picture of your mother and giving you what the paper’s worth. [Previous page](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282.md?page=1) [Next page](https://boards.straightdope.com/t/eminent-domain-and-payback-for-souter/341282.md?page=3)