<p>Obviously… but I was referring to the people outside of the legal community. Abortion is outside of the strict constructionalist thing (as it is not explicitly mentioned, 9th Amendment be darned) - but the Takings Clause is clearly within the purview of the Constitution. IMO, it’s an entirely different issue from the one you raise.</p>
<p>"I’m with SBMom - it’s just too easy for municipalities to run over their residents in doing these things. IMO, we should never give rights away for increased convenience (in the sense of it being easier/more convenient to just seize people’s homes instead of waiting until they sell or offering them a deal or finding another place to put the $<em>^</em>^*& hotel). "</p>
<p>I agree, and from having read the decision, Souter likely would agree as well. And the majority said there is a place to fight that issue out: in the municipality doing the taking, and the state that gave the municipality the legislative power to do it. That’s how it was fought out when the Constitution was written, and there’s no difference today. (Some of the history prior to the Bill of Rights was that it was assumed possible for colonies or states to take property WITHOUT just compensation. That’s what the 5th Amendment was aiming at preventing.)</p>
<p>Two problems: </p>
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<li> As someone pointed out earlier, these municipalities are often run by people insulated from political pressure; they are often appointees of those who are elected. IMO, you can’t make the federalist argument (that this is better fought through legislation on the local/state level) when the basis for that theory (pre-New Deal type representation, in that those making the decisions have accountability to the electorate) simply does not apply. We’ve moved quite far away from a representative government… IMO, hence the reliance upon the courts.</li>
<li> That rationale applies to everything. Government engaging in cruel & unusual punishment? Change the laws! It’s absurd, because the Constitution (IMNHO) provides a minimal level of protection against certain governmental abuses… that, regardless of what the laws may say, some things just don’t fly.</li>
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14th Amendment–that’s the difference. It’s never been the same since.</p>
<ol>
<li>As someone pointed out earlier, these municipalities are often run by people insulated from political pressure; they are often appointees of those who are elected. IMO, you can’t make the federalist argument (that this is better fought through legislation on the local/state level) when the basis for that theory (pre-New Deal type representation, in that those making the decisions have accountability to the electorate) simply does not apply. We’ve moved quite far away from a representative government… IMO, hence the reliance upon the courts."</li>
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<p>I didn’t make the argument: the framers, and 200 years of judicial history do (including 140 years after the adoption of the 14th Amendment - as regards this issue, it HAS been the same since. In fact, some of the cornerstone cases I referenced from Findlaw happened within a decade or two of its adoption.) The 5th Amendment was not placed there to protect against “takings” (much of which would result in private profit - that’s how harbors are built), but against the lack of “just compensation”. The 9th amendment reserved those powers unenumerated to states and to the people.</p>
<p>Scalia’s argument is simply that of an activist judge, promoting broad new federal powers not imagined by the founding patriarchs. I frankly don’t take it too seriously. O’Connor’s I thought more interesting, specifically in her lack of reference to the 14th Amendment. She did NOT find that the plaintiffs had not been provided “due process of law”, but merely that the effect of the ruling might be more chilling than she’d like. It’s a good argument, just not a constitutional one. The “conservative” justices followed strict construction.</p>
<p>[General</a> Assembly kills GOP plan to limit eminent domain powers](<a href=“Newsday | Long Island's & NYC's News Source - Newsday”>Newsday | Long Island's & NYC's News Source - Newsday)</p>
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<p>“The 5th Amendment was not placed there to protect against “takings” (much of which would result in private profit - that’s how harbors are built), but against the lack of “just compensation”.”</p>
<p>O’Connor disagrees - her dissent stated that rules of construction state that all words and clauses must be given meaning; as the Fifth Amendment is quite explicit about “for public use,” the clause clearly limits the power of takings to those for a public purpose.</p>
<p>You can’t mean to say that harbours don’t result in massive, direct benefits to the residents of an area. Given that nearly every major city in the US is along a waterway, the importance of access to major transportation routes is undeniable. That is a far cry from requiring waterfront hotels in every thriving municipality.</p>
<p>“That is a far cry from requiring waterfront hotels in every thriving municipality.”</p>
<p>Actually there’s a precident for that from Scotland.</p>
<p>“Given that nearly every major city in the US is along a waterway”</p>
<p>And those of us born and raised in cities spawned on major rail lines might want to quarrel with your definition of “major city”. ;)</p>
<p>Emphasis on “nearly” part of “every” - I think it’s clear that I left room for exceptions. </p>
<p>Does not change the fact that many of our cities and populations are centered around the coasts. East Coast makes sense - that’s where the country started and we expanded westward. But CA became much more populous than the states bordering it… because of waterways. </p>
<p>Now that I’ve beaten the subject to death, you did make an excellent point. Railways & interstate highways are, for the large part, the arteries of landlocked cities. Those came about through eminent domain. </p>
<p>IMO, there’s a huge difference between taking land to make a railroad (without which, a city like Atlanta would not have really exsited) and taking it to build a waterfront hotel (a hotel which could be built inland and clearly is not necessary for the livelihood of every single municipality).</p>