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Eminent Domain (essay by Fred Thompson)
I'm with Fred ^ | 07/30/07 | Fred D Thompson

Posted on 07/30/2007 7:25:44 AM PDT by SE Mom

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To: dougd
OTH, I do have a real problem with SCOTUS having carved up the Bill of Rights as maybe/maybe not applying only to fedgov versus protecting basic rights of all citizens ergo all states as well.

But before the 20th century and even after the passage of the 14th Amendment, the Bill of Rights did not apply to the states. SCOTUS did not determine the 5th applied until 1898 and the 1st applied until 1925, and many of the other Amendments until the 1930s (after FDR's court stacking)

141 posted on 07/30/2007 7:46:01 PM PDT by billbears (Those who do not remember the past are condemned to repeat it. --Santayana)
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To: billbears
I know. but my problem is the scattergun approach to what does or doesn't. Pick one: either they all apply only to fedgov alone or they all apply to states as well - just stop the playing it for expediency in the case at hand.

The way it is now, people can't tell whom to hold accountable when those rights are abused which only allows it to continue and exacerbate.

... or maybe we need another amendment to set it one way or the other. ... but it would probably take to much brain energy for our uneducated population to really understand the pros and cons. sigh!

142 posted on 07/30/2007 8:09:49 PM PDT by dougd
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To: dougd
.. or maybe we need another amendment to set it one way or the other. ... but it would probably take to much brain energy for our uneducated population to really understand the pros and cons. sigh!

Well we did have the 10th. And frankly the Republicans just ignored that first time through. The 14th wasn't understood to incorporate the others except perhaps by the Radical Republicans. And even then it took close to 50 years for it to incorporate the others. Frankly I have no problem in theory with the Bill of Rights being incorporated. Except like in the case of the 1st, the ACLU runs to it everytime a small town decides to hang a picture of Jesus, Robert E. Lee, or the Ten Commandments in or near their city hall

You are right. To explain it to today's population would take years to undo what's been done in the name of 'good intentions'

143 posted on 07/30/2007 8:14:22 PM PDT by billbears (Those who do not remember the past are condemned to repeat it. --Santayana)
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To: Titus Quinctius Cincinnatus
I would see it as falling under "all other Powers vested by this Constitution in the Government of the United States", as found in the 5th and 14th amendments.

The 5th and 14th don't vest powers, they limit them. So does the 10th.

Well, technically BOTH are under Congress' purview, since Congress has origination on legislation, including legislation on spending.

No, they have "All legislative Powers herein [the Constitution] granted". Those powers are listed specifically in Article 1, Sec 8. Nor do they have the power of the purse over State matters, only Federal, and that is "...to pay the Debts and provide for the common Defence and general Welfare of the United States;..." Witholding funding to compel States to abide by Federal rules does neither of these functions.

...Congress can certainly use its purse powers for the protection of our natural property rights.

How? How does Federal spending or not spending money protect your natural property rights?

I would say that the SCOTUS was wrong, then. That last clause "violation of equal protection of a US citizen" is what applies here - that equal protection is specifically grant for property rights by the 14th amendment.

I agree they were wrong, but not because of an equal protection violation. All citizens are equally at risk for eminent domain takings. It is only if it can be proved that some citizens are treated differently under the law than others that the equal protection clause is violated.

What I think was violated was the 5th's clause: "nor shall private property be taken for public use, without just compensation." Reselling to another private concern does not constitute "public use", IMO. But, only 4 of the 9 saw it my way. The majority said it was up to the States to define "public use" more strictly if they wanted to stop these takings.

My point is that, despite the Court decision, it is my understanding that Congress is well within its rights to pass law which contrafutes the Court's opinion, by specifically appealing to the Constitution.

Maybe for future cases, but they can't create an ex post facto law. But, I believe that in the Kelo v New London case, the State was a party, thus giving the SC original jurisdiction, not subject to Congress. It didn't go through a Federal appeal. It went from the CT SC directly to the USSC.

144 posted on 07/30/2007 10:14:31 PM PDT by LexBaird (Tyrannosaurus Lex, unapologetic carnivore)
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To: LexBaird

The point is that a Constitutional originalist would probably say that Kelo was a bad ruling, because it redefined the term “public use” in a way that the Founders very likely did not intend. So, it’s an appropriately federalist action for the Congress to discourage state infringement of inalienable rights that are protected by the US Constitution, bad SCOTUS ruling notwithstanding. The Founders set up a system of co-equal branches and checks and balances — ergo the Congress does not have to accept as gospel a Supreme Court ruling that so obviously flies in the face of our natural rights.

To your question of tactics, an economic threat is probably the quickest and most direct way the legislative branch can discourage state infringement of the fifth amendment. I don’t see it as a case of “economic blackmail,” for this reason: ultimately the money that feeds both state and federal government is our money. In this particular case, states want to use our money to steal our property; the feds want to use our money to discourage the states from stealing our property. I say the latter is a more appropriate use. I don’t in any way think this is the answer to the problem — but it’s a start.


145 posted on 07/30/2007 10:14:44 PM PDT by ellery (I don't remember a constitutional amendment that gives you the right not to be identified-R.Giuliani)
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To: ellery; Titus Quinctius Cincinnatus

You know what’s great about FR? When we have disagreements, we dig into the minutiae of the Constitution instead of breaking out the profanity.


146 posted on 07/30/2007 10:22:09 PM PDT by LexBaird (Tyrannosaurus Lex, unapologetic carnivore)
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To: ejonesie22

I very much support Thompson, but I do think it’s sad how much flak Dr. Paul gets around here. I think Paul is not at all realistic about the Islamofascist threat — but I will always respect his reverence for the Constitution and our Founders. Considering that Paul has been a long-time leader in the fight against eminent domain thievery, it’s distasteful to me to see Ron Paul mockery on this particular thread. At least give the guy credit where credit is due — he’s been fighting a lonely battle against this crap in DC.


147 posted on 07/30/2007 10:22:56 PM PDT by ellery (I don't remember a constitutional amendment that gives you the right not to be identified-R.Giuliani)
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To: LexBaird
It was a crappy decision, but unless Congress wants to amend the Constitution to strengthen and clarify the 5th A., they have no authority to impose their will, under the 10th A. The States can voluntarily strengthen the standards for eminent domain, but the 14th A. only prevents them from weakening them less than what the Constitution guarantees to all US citizens.

The problem is that you're assuming that Congress has no recourse for dealing with a bad SCOTUS decision short of a Constitutional amendment. This just isn't so -- the Founders gave us a government with co-equal branches and the expectation that each would use its power to check the others. That's what's happening here -- Congress is using its Constitutional power of the purse to check a bad court ruling. Sure, they often use the power of the purse for bad purposes -- that doesn't at all mean that they shouldn't use it for good purpose when they have the proper Constitutional authority to do so.

148 posted on 07/30/2007 10:40:22 PM PDT by ellery (I don't remember a constitutional amendment that gives you the right not to be identified-R.Giuliani)
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To: ellery
I cede your point. He catches more flak because of his supporters that what he supports. Aside from a somewhat overly simplistic view on some issues, Dr. Paul has my blessings. In the end it is the same general team.
149 posted on 07/30/2007 10:41:53 PM PDT by ejonesie22 (I am not really a Fred basher, I just play one on Free Republic. THOMPSON 2008!)
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To: LexBaird
You know what’s great about FR? When we have disagreements, we dig into the minutiae of the Constitution instead of breaking out the profanity.

Damn right! :) I was thinking the same thing. This has been a very interesting exchange.

150 posted on 07/30/2007 10:47:13 PM PDT by ellery (I don't remember a constitutional amendment that gives you the right not to be identified-R.Giuliani)
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To: ejonesie22

I understand...and I apologize if I’m being a wet blanket. :)


151 posted on 07/30/2007 10:49:53 PM PDT by ellery (I don't remember a constitutional amendment that gives you the right not to be identified-R.Giuliani)
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To: ellery
Oh, not at all. Just understand the sarcasm as intended. You have to admit some f the real stuff is over the top...
152 posted on 07/30/2007 11:01:49 PM PDT by ejonesie22 (I am not really a Fred basher, I just play one on Free Republic. THOMPSON 2008!)
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To: ejonesie22

The real stuff does seem over the top. However, we all have our own personal idiosyncracies about what we like/dislike in a candidate...the only criticisms that really rub me the wrong way are the ones coming from folks whose own candidates are guilty of what they’re attacking Thompson for.

Wow, that was a convoluted sentence I just wrote.


153 posted on 07/31/2007 12:01:14 AM PDT by ellery (I don't remember a constitutional amendment that gives you the right not to be identified-R.Giuliani)
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To: ellery
Yes it was. You are good. You should try artificial candidate bashing, you have the skills...

But yes, I agree with what you are saying, and in some small way that’s why I make fun.

154 posted on 07/31/2007 4:37:20 AM PDT by ejonesie22 (I am not really a Fred basher, I just play one on Free Republic. THOMPSON 2008!)
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To: Sturm Ruger
The day-to-day campaign will now be run by Randy Enwright, a Florida consultant who was the political director. And former Sen. Spencer Abraham (R-Mich.) will be the chairman, acting as the campaign’s ambassador to official Washington.

The guy is an open-borders, Hizbollah-supporting, RINO louse and should not serve in ANY capacity. So please stop trying to obfuscate. It 'aint workin', in case you haven't noticed from other threads.

155 posted on 07/31/2007 6:35:27 AM PDT by montag813
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To: Sturm Ruger
You never supported Fred in the first place, so take your seminar postings back to DU DU...

That's quite a post coming from someone who's been on this forum 7 years less than me. Your childish snipes are really just boring at this point. If you have nothing substantive to offer, please just go away.

156 posted on 07/31/2007 6:40:20 AM PDT by montag813
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To: ellery
This just isn't so -- the Founders gave us a government with co-equal branches and the expectation that each would use its power to check the others. That's what's happening here -- Congress is using its Constitutional power of the purse to check a bad court ruling.

No, they aren't. The ruling remains in force, while the Congress muddies the waters by using the power of the purse to influence State legislative jurisdictions. They aren't effecting the Court at all, and besides, that is not what the PotP is for.

157 posted on 07/31/2007 10:49:25 AM PDT by LexBaird (Tyrannosaurus Lex, unapologetic carnivore)
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