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| SUCCESS! |
| Friday, July 01, 2005 |
| In regards to the Supreme Court decision on eminent domain, your letters and emails made a difference. Thanks you!
Don't' get me wrong. I appreciate the swiftness and purpose of the U.S. House action Thursday to contest the U.S. Supreme Court's 5-4 ruling that cities can use their powers of eminent domain to condemn property for private development. In a bipartisan act of indignation, the House half of congress voted 231 to 189 to deny federal funds to any city or state project that uses eminent domain to force people to sell their property to make way for a profit-making project such as a hotel or mall.
It just seems to me that this is one of those rare opportunities for Congress to take the whole loaf and not settle for half. Rarely, if ever, does a case of judicial intemperance boil the political blood of both conservatives and liberals, but the eminent domain ruling seems to have done so. This is the perfect opportunity for Congress to take on the Supreme Court directly, and reassert its constitutional exclusivity over the field of making law.
Obviously, a majority in the House of Representatives disagrees with the court's ruling. But rather than challenging it directly, which it can easily do by passing a law that contradicts the ruling, the House has chosen to say, "not with federal money you don't." That would be a good first step, if that's the best Congress can do, but it seems Congress could do better this time, and so it should.
The measure passed by the House as an amendment to an appropriations bill does not adequately reflect the opinion of the members that the ruling was wrong - that eminent domain should not be used to take private property for other private use. The House amendment still allows that to happen. It only prohibits the use of federal funds on such projects. If cities have no intention of using federal funds in the process of taking your home or business and turning it over to a bigger business venture, there would still be no barrier.
If the outrage on Capitol Hill is serious, congress should pass a law that expressly prohibits the use of eminent domain for private development. Surely a city would challenge the law somewhere down the line, and the challenge may eventually make its way to the Supreme Court, which might rule the law unconstitutional, but those are a lot of maybes, the sum of which should not deter Congress if the will to contradict the ruling actually exists.
Some legal scholars will argue that since eminent domain is a power mainly used by local government, it is better that the states, not Congress, reign in its use. I could not disagree more strongly. Eminent domain is a limit on government power, expressed, but not clearly defined by the U.S. constitution. The final clause in the 5th Amendment says "nor shall private property be taken for public use without just compensation."
The challenge has been to determine what constitutes public use. Absent any specific instructions by Congress, the courts have defined it to mean "public benefit," and have given cities infinite latitude to determine what constitutes "public benefit."
The public use clause was clearly meant to limit the power of government to take private property. The judicial branch of the U.S. government has seriously diluted the limitation. It is up to Congress, not the states, to correct the Supreme Court's alleged misinterpretation. If Congress is serious about stopping the judicial branch of government from infringing on its legislative role by interpreting the U.S. Constitution in such a way that it amounts to rewriting the Constitution, then it will have to pass laws that contradict Supreme Court rulings.
Congress needs to say, "We think you have misinterpreted the Constitution on this matter. Therefore, we are vetoing your ruling by passing a law that contradicts your interpretation. You may, if you wish, override our veto by ruling that our law violates the constitution. That will leave us with one final, difficult option -- an amendment to the constitution. Here is our veto. You may yield to us, or take it to the next level. The ball is in your court."
I believe, in more cases than not, the court would yield to Congress. Ralph Bristol |
posted by Jack Mercer @ 7/01/2005 10:08:00 AM   |
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Name: Jack Mercer
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