Where does the Constitution delegate the power to take land for public use?

[Baron Holbach4]

Amend the 5th Amendment

nor shall private property be taken for public use without just compensation.

Who determines what is "just compensation"?

A constitutional amendment could revise the 5th amendment to read:

". . . nor shall private property be taken for public use."

By excluding the "just compensation" clause, eminent domain powers could effectively be revoked by the people. Thereafter, private property rights revert to their true, natural law meaning.

Would it be necessary to bullet-proof the 5th Amendment by amending it as follows?:

". . . nor shall private property be taken for public or private use." The point being, don't let SCOTUS perform one of their sneaky interpretations for what amounts to a legitimate taking by the federal government just because SCOTUS says so.

 

[Art Eatman]

Baron, in Texas, a jury decides the value. If you don't like the $$$ offered by the State, request a trial. Testimony includes comparable sales and potential future values. By and large, the history of such trials shows that the sellers come out ahead. There is another benefit in that the forced sale's money is free of federal income tax.

Again: Without eminent domain, we'd be spending a helluva lot more tax money to build our infrastructure of public-use facilities. It's the abuse of public-use that's the real issue, not eminent domain itself.

SCOTUS blew its opportunity to reverse the urban-renewal justification of "public benefit" in this recent decision. Call the majority "Dictionarily challenged".

Art

 

[Bartholomew Roberts]

I imagine that despite the fact that this was common law practice well known to all the Founding Fathers prior to the Constitution (thus the prohibition about taking without just compensation), the founders would argue that IF a explicit authorization was necessary it was in Article 1, Sec. 8 of the Constitution.

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Since this same section grants Congress the power (among other things) to:

To establish post offices and post roads;

It would seem McCulloch v. Maryland reinforces the proposition that the Necessary & Proper clause authorizes Congress to use eminent domain to establish roads and similar public utilities. Contrary to Molon Labe's point, the point that the Fifth Amendment limits taking of private property for public use without just compensation is pretty clear evidence that the founders did contemplate taking private propert for public use WITH just compensation.

". . . nor shall private property be taken for public or private use." The point being, don't let SCOTUS perform one of their sneaky interpretations for what amounts to a legitimate taking by the federal government just because SCOTUS says so.

So anybody who has space needed for a road can now demand whatever fee they like from the taxpayers (you & me) and our only choice is either to pay it or see all the other land bought for that purpose made useless? And of course the politicians and bureaucrats who determine what private property will be purchased for public use will never abuse this power to enrich themselves or their allies by routing it over specific land? Have you considered even some of the problems with your alternative proposal?

 

[Art Eatman]

Y'know, it's sorta funny, reading through all this about the objections to eminent domain, when I think what's been enabled by the concept.

Water conveyance systems, such as the All-American Canal, or the canals down the central valley of California which provide the water for irrigation.

Airports. Railroads. Seaports. Navigation projects such as the Gulf IntraCoastal Waterway and the Mississippi River (gotta have a place to dump dredge spoil). Highways. Gas and oil pipelines, and water pipelines into cities. Dams and reservoirs for water supply, flood control and recreation.

Libraries. Hospitals. Parks. Fire stations. Wastewater treatment plants.

We don't need any military bases?

Without eminent domain, the costs of all that stuff would be stratospheric. $3 gasoline would be a trivial item in one's life.

Art

 

[The Real Hawkeye]

Eminent Domain is a common law concept that isn't spelled out in the Constitution. Under English common law the sovriegn could take private property almost on a whim. The 5th Ammendment prevents the taking of property _without_compensation_ but doesn't prevent it outright.

Precisely. It is at common law relating to SOVEREIGN POWERS. Well, need I remind you sir that the US Federal Government is unique in all of history in that it HAS NOT ONE SOVEREIGN POWER WHICH HAS NOT BEEN DELEGATED TO IT BY THE SOVEREIGN STATES SO ENUMERATED IN THE DOCUMENT ESTABLISHING ITS DELEGATED (AND REVOCABLE) SOVEREIGN POWERS. By your reasoning, sir, the United Nations has a sovereign power of eminent domain within the borders of the United States, or any other nation belonging to that international organization. But it does not, because it only has those powers delegated to it by its membership of sovereign nations.

Furthermore, according to your reasoning, the Federal Government is entirely unhampered when it comes to taking land for PRIVATE use, because nowhere in the Constitution or its amendments is that sovereign power circumscribed, and taking land for private use is also a sovereign power at common law.

 

[The Real Hawkeye]

Again: Without eminent domain, we'd be spending a helluva lot more tax money to build our infrastructure of public-use facilities. It's the abuse of public-use that's the real issue, not eminent domain itself.

Art, you are wrestling with the wind with that one. I don't believe that anyone here has asserted that Sovereign States lack the original sovereign power to take land via eminent domain. All States have that power, except to the extent that it has been circumscribed by their Constitutions. With an association of sovereign States, however, it is just the reverse. It has no sovereign powers not delegated to it by the sources of sovereign power, i.e., the States of its membership.

Remember, the Federal Government is not a super state. To the extent that it assumes the powers of a State without those powers having been delegated to it by enumeration, it is acting lawlessly. That is not to say that lawless conduct on the part of the Federal Government is impossible. Far from it. History has already witnessed the War of Northern Aggression, and its aftermath. But exercises in raw armed power are not necessarily lawful. Might doesn't really make right.

 

[Art Eatman]

TRH, I gotta disagree with your reasoning and with your interpretation of what's been posted.

The Fifth Amendment specifies "public use" and is related to what I posted earlier about "common good". That's not "private use". While much of our legal structure is based upon English Common Law, that Common Law is not OUR law. The utility of knowedge of it is that it assists in interpreting the meanings of parts of our Constitution and our early laws--but it's in no way binding.

Again, I submit that the problem lies in the difference between the "public use" of the 5thA and the recent SCOTUS decision strengthening "public benefit" as being synonymous. Heck, without that, we wouldn't have had all this public spotlight being brought to bear on the abuses by various local and state governments that were enabled by the Urban Renewal SCOTUS decision some 50 years back.

I dunno 'bout the rest of you folks, but I get fed up with governmental redefinition of words.

Art

 

[The Real Hawkeye]

Bart, the necessary and proper clause was not a blank check. It merely gave the Federal Government the authorization to act on the powers granted to it by enumeration. For a government to act on its powers, it must pass laws. It is that simple. The States give Congress the power to raise armies, so how does Congress do that? It just doesn't stand on a podium and shout out to the country, "Hey, y'all, we got ourselves a war on, so we need y'all to come on over here and sign on up." No, a law must then be passed in accordance with the delegated power. The necessary and proper clause is not carte blanch to pass any law the Federal Government thinks necessary and proper. Any such law must be consistent with powers granted by delegation. By your reasoning, the Federal Government is not one of limited, enumerated and delegated powers, but one of plenary powers, lacking only those prohibited. This should be, one hopes, absurd on its face to anyone who has read the Founders.

 

[The Real Hawkeye]

TRH, I gotta disagree with your reasoning and with your interpretation of what's been posted.

The Fifth Amendment specifies "public use" and is related to what I posted earlier about "common good". That's not "private use". While much of our legal structure is based upon English Common Law, that Common Law is not OUR law. The utility of knowedge of it is that it assists in interpreting the meanings of parts of our Constitution and our early laws--but it's in no way binding.

Again, I submit that the problem lies in the difference between the "public use" of the 5thA and the recent SCOTUS decision strengthening "public benefit" as being synonymous. Heck, without that, we wouldn't have had all this public spotlight being brought to bear on the abuses by various local and state governments that were enabled by the Urban Renewal SCOTUS decision some 50 years back.

I dunno 'bout the rest of you folks, but I get fed up with governmental redefinition of words.

Art

Art, if you wouldn't mind, please point out to us two things. Firstly, where precisely in the Constitution is the power to take land delegated to the US Government and, secondly, where is the power of the US Government to take land for PRIVATE USE circumscribed in any way? I contend that the latter is not necessary, because never delegated to it originally, and the former is not contained in the Constitution, and therefore is not available to the US Government. Please refute.

 

[Bartholomew Roberts]

Well, need I remind you sir that the US Federal Government is unique in all of history in that it HAS NOT ONE SOVEREIGN POWER WHICH HAS NOT BEEN DELEGATED TO IT BY THE SOVEREIGN STATES SO ENUMERATED IN THE DOCUMENT ESTABLISHING ITS DELEGATED (AND REVOCABLE) SOVEREIGN POWERS.

You are confusing two different concepts. You claim that because a power is not specifically enumerated in the Constitution it does not exist and that is simply not true of the Constitution. One of the reasons the Articles of Confederation was abandoned was because it DID require an express enumeration of power to the federal government. This arrangement was so unworkable that even the anti-federalists abandoned it when the Constitution was drawn up. The delegation of powers to the federal government under the Constitution is both EXPRESS and IMPLIED.

Any such law must be consistent with powers granted by delegation. By your reasoning, the Federal Government is not one of limited, enumerated and delegated powers, but one of plenary powers, lacking only those prohibited. This should be, one hopes, absurd on its face to anyone who has read the Founders.

First, that isn't the case at all. It simply says that just because it wasn't explicitly named in the Constitution doesn't mean that Congress does not have the power if it relates to a means of carrying out an enumerated power.

Second, that isn't my reasoning, it is the reasoning of Chief Justice John Marshall - Revolutionary War veteran, buddy of George Washington and John Adams, Federalist, former House representative, Secretary of State, etc.

It has been the legal doctrine of this country since 1819, when the people who actually wrote the Constitution were also putting it into action in a practical government.

To reinforce my earlier point, in McCulloch v. Maryland, the state of Maryland made much the same argument that you are making now - nowhere in the Constitution is there any grant of power for the national government to establish a national bank. Here is Marshall's response:

Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers "not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people"; thus leaving the question, whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the ninth section of the 1st article, introduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a constitution we are expounding.

Although, among the enumerated powers of government, we do not find the word "bank," or "incorporation," we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are entrusted to its government. It can never be pretended that these vast powers draw after them others of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it may with great reason be contended, that a government, entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution.

Here your argument is even weaker than the one the state of Maryland made because of the 5th Amendment "no taking of private property for public use without just compensation" shows that taking with just compensation was contemplated (remember that the 14th Amendment saying that the Bill of Rights also applied to state sovereignty wouldn't be passed until after the civil war). Since the 5th Amendment applies only to the Federal government, why that wording if they do not have that power or that power is not contemplated for them?

 

[mountainclmbr]

What is to stop a bankruptcy-bound state like California, with laws limiting annual property tax increases, from taking homes from old people (with just compensation) and selling that home for the same just price to a new buyer in order to establish a new and higher baseline for property tax?

 

[hugh damright]

the 5th Amendment "no taking of private property for public use without just compensation" shows that taking with just compensation was contemplated ... Since the 5th Amendment applies only to the Federal government, why that wording if they do not have that power or that power is not contemplated for them?

Could it simply be a declaration of a principle of free government, a political right, that private property shall not taken for public use without just compensation ... without any implication that the US has the power to take private property?

 

[The Real Hawkeye]

The delegation of powers to the federal government under the Constitution is both EXPRESS and IMPLIED.

"The powers delegated by the proposed Constitution to the federal government are few and defined." - Federalist No. 45, James Madison.

Since the 5th Amendment applies only to the Federal government, why that wording if they do not have that power or that power is not contemplated for them?

The same could be said for any of the articles of the Bill of Rights. They are circumscriptions of powers never delegated, which is precisely why the Federalists argued that they were unnecessary. Since the US Constitution doesn't delegate the power to the Federal Government to quarter troops in private homes to start with, they argued, there is no need to prohibit it from doing so in a separate amendment. The power was not delegated, they assured us, therefore it is already prohibited. You, sir, seem to have a different take on the Constitution than either the Federalist or the anti-Federalists.

 

[The Real Hawkeye]

Could it simply be a declaration of a principle of free government, a political right, that private property shall not taken for public use without just compensation ... without any implication that the US has the power to take private property?

Hugh, you are beginning to win me over to your view of the Bill of Rights.

 

[Bartholomew Roberts]

Could it simply be a declaration of a principle of free government, a political right, that private property shall not taken for public use without just compensation ... without any implication that the US has the power to take private property?

If the U.S. has no power to take private property for public use (which was common law in both England and the colonies at this time), then why use the phrase "without just compensation" at all? Why not just say "private property shall not be taken for public use"?

"The powers delegated by the proposed Constitution to the federal government are few and defined." - Federalist No. 45, James Madison.

"Yet history does not inform us that either of them ever degenerated, or tended to degenerate, into one consolidated government. On the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissensions, and finally the disunion, of the subordinate authorities." Federalist No. 45, James Madison

Alexander Hamilton, John Adams, John Marshall... you might recognize those names since they are also on some of the Federalist papers, the Constitution and other important documents. All of these men advocated implied powers to carry out those enumerated in the Constitution. Further, this is the law of the land and has been since at least 1819.

To use the example you so blithely ignored earlier, why don't you explain to me how Congress will establish post roads (an enumerated power under the Constitution) under the alternative intepretation you propose where Congress has no power to take private land for public use?

They are circumscriptions of powers never delegated, which is precisely why the Federalists argued that they were unnecessary.

The Fifth Amendment says "no private property may be taken for public use without just compensation. Once again, how is without just compensation relevant if the power was never delegated to begin with? You manage to type quite a bit without ever actually answering that question.

Based on your interpretation, what about other parts of the Fifth Amendment "nor be deprived of life, liberty, or property, without due process of law". If your logic on the takings clause follows, then where is the authority for the Feds to deprive people of life, liberty or property anywhere in the Constitution? I don't see where it specifically says in Art. III that the court has the power to do any of these things even with due process.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger

You, sir, seem to have a different take on the Constitution than either the Federalist or the anti-Federalists.

Then you shouldn't have a hard time actually answering some of my questions instead of your usual practice of evading them... Barring that, you have been pointed towrads English Common Law, Art. I Sec. 8, the Fifth Amendment, etc. Instead of giving me the Constitution according to TRH, how about a quote from a period court decision, the Federalist papers or the Anti-Federalist papers saying that eminent domain is not a feature of our Constitution?

 

[Baron Holbach4]

Could it simply be a declaration of a principle of free government, a political right, that private property shall not taken for public use without just compensation ... without any implication that the US has the power to take private property?

Could it also be that the Founders feared eminent domain abuse inherent in the government process of internal improvements? Everytime government embarks on internal improvements, corruption and waste oozes throughout the process: from the moment the government invokes eminent domain and takes a private property; through the process of spoils when a business is awarded the contract to perform the internal improvment; and which includes donations by the business to those politicians it wants to see elected because it will be those politicians awarding the contract. The Founders were sounding the alarm to something much bigger than just the takings clause; they were warning of the corruption inherent in the whole just compensation clause and beyond, after eminent domain is invoked.

 

[Bartholomew Roberts]

Could it also be that the Founders feared eminent domain abuse inherent in the government process of internal improvements?

Eminent domain has existed since the Dark Ages because it serves a practical purpose. The answer to eminent domain abuse is to hold the people in power responsible when they abuse that power.

There is a natural tendency to want to remove power from people when it is abused. Doesn't that pretty much sum up the gun control movement? Removing government's power to exercise eminent domain means that everybody pays more. People who have property needed for a road, electricity line, water line, etc. can demand any price they want and the taxpayers have no choice but to pay it or start over again somehwere else and hope there are no holdouts there.

Now there is no question to my mind, that taking private property under the justification of "increased property tax value" is an abuse of eminent domain; but the answer isn't to throw away a useful tool - the answer is to hold the person who abused that tool responsible for their actions. That is what the voting booth is for...

 

[The Real Hawkeye]

To use the example you so blithely ignored earlier, why don't you explain to me how Congress will establish post roads (an enumerated power under the Constitution) under the alternative intepretation you propose where Congress has no power to take private land for public use?

There are any number of ways. I will name two off the top of my head. (1) They will inform the States through which such roads will pass that they require a land grant, thus requiring the States (Supremacy Clause) to take the land needed and provide it to the Federal Government for a public use authorized by the Constitution. (2) Purchase the needed land on the open market through third parties employed by an agency of the Federal Government, not specifying the intended use or the identity of the purchaser until all the land was purchased. They would be doing this under the authority of Section 8 of Article I. There, I put two minutes into considering it, and I came up with two solutions. I imagine that folks in the Federal Government could come up with even more than that if they put their collective minds into it.

The Fifth Amendment says "no private property may be taken for public use without just compensation. Once again, how is without just compensation relevant if the power was never delegated to begin with? You manage to type quite a bit without ever actually answering that question.

Funny, I thought I answered that. Here goes again: How is "No soldier, in time of peace, shall be quartered in any house, without the consent of the owner, nor in a time of war, except in a manner prescribed by law" relevant if the power was never delegated to begin with? That was precisely the argument of the Federalist, i.e., we don't need a list of things the Federal Government cannot do since the Federal Government is already prohibited from doing anything which it has not been delegated the power to do in the first place.

Instead of giving me the Constitution according to TRH, how about a quote from a period court decision, the Federalist papers or the Anti-Federalist papers saying that eminent domain is not a feature of our Constitution?

I also cannot find any statement in those records indicating that the President cannot murder the Speaker of the House. Shall we then conclude that this would be within his Constitutional powers?

Corrected a typo

 

[Bartholomew Roberts]

There, I put two minutes into considering it, and I came up with two solutions. I imagine that folks in the Federal Government could come up with even more than that if they put their collective minds into it.

How is solution one any different on a practical level from the current law? Kelo was a state eminent domain seizure. If the states are compelled to carry out eminent domain seizures under the Supremacy clause, what extra protection is offered by this scheme?

Solution two works just fine provided no holdout problems are encountered. Holdout problems do get encountered - that is why eminent domain was part of common law. What do you do then?

How is "No soldier, in time of peace, shall be quartered in any house, without the consent of the owner, nor in a time of war, except in a manner prescribed by law" relevant if the power was never delegated to begin with?

You don't seem to grasp the difference between your comparisons. In the Fifth Amendment, you argue that the lack of an express delegation of power means that Congress may not use eminent domain even WITH just compensation.

If I made the same argument about the Third Amendment, that you are making about the Fifth Amendment. I would be arguing that just because it says "except in a manner prescribed by law" is irrelevant because there is no express delegation to quarter troops in the Constitution anyway.

Second, what does that tell us about your contention that the Constitution limits the federal government only to expressly named powers? Why did the anti-federalists feel a need to secure a guarantee against a power not specifically granted in the Constitution if they didn't accept that implied powers were a necessary part of the Constitution?

I also cannot find any statement in those records indicating that the President cannot murder the Speaker of the House. Shall we then conclude that this would be within his Constitutional powers?

Did all of the founding fathers share a several hundred year old common-law legal practice of having the head of state murder the speaker of the legislature without penalty? Because all of the founders did share a several hundred year old common law legal tradition of eminent domain. Also, is there an amendment in the Bill of Rights stating "no Speaker of the House shall be murdered by the President, except for just cause"? I got a big chuckle out of the reasoning though...

 

[Bartholomew Roberts]

Based on your interpretation, what about other parts of the Fifth Amendment "nor be deprived of life, liberty, or property, without due process of law". If your logic on the takings clause follows, then where is the authority for the Feds to deprive people of life, liberty or property anywhere in the Constitution? I don't see where it specifically says in Art. III that the court has the power to do any of these things even with due process.

Did you plan on explaining to me how your interpretation of the Fifth Amendment affects other portions of that amendment, or were you hoping that question would just go away quietly?

 

[eghad]

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

You will not see the power to grant War Veterans land in the Constitution either but it was done.

When this nation was founded we didnt just set up legal shops from scratch, many states were already using common law. Eminent domain is one of the principles handed down from common law. It was not a new concept when the US was founded as the mention in the Fifth Amendment shows. If you own property a government unit is responsible for establishing that claim in the form of a deed which you hold that proves you have ownership of the property. State Governments excercise control of land by taxation, police power and eminent domain. They can take it from you by "due process" if you dont pay taxes. You wont see any outright mention of some of these in the Constitution because in many of the states these legal principles were already being practiced as they were part of common law that came over from England.

So the States were already practicing this as law. Which would fall under thier jurisdiction and power to do so. The Fifth amendment said that land owners must be given "due process" if thier land is taken for public use.

The Supreme Court also left the door open so that the individual states could amend thier laws to keep this from happening again.

 

[The Real Hawkeye]

Did you plan on explaining to me how your interpretation of the Fifth Amendment affects other portions of that amendment, or were you hoping that question would just go away quietly?

You will have to excuse me for missing one of your questions, but you have a tendency to use a shotgun approach, and it is not easy keeping up.

Ok, let me see if I understand what you are asking. My "interpretation" of the Fifth Amendment is that it means what it says, and no more. How complicated is that? It states a list of things government cannot do, not expressly identifying which government it is referring to, but stating, it would seem, broad principles which apply to all constituted governments. It could be they intended these restrictions to apply only to the Federal Government, or they could have meant to bind the States too, as unlike the First Amendment, Congress is not referenced as the body constrained. So we have a bunch of stuff government cannot do. It cannot hold a person for capital offense without meeting certain specified standards. It cannot punish you for refusal to testify against yourself. It cannot take private property for public use without just compensation. These are all thing that the Fifth Amendment states the government cannot do. Nowhere in there, however, is a statement of what government CAN do. If I forbid you from driving my car while you are intoxicated, this is not a grant of right for you to drive my car while sober. To do that, you will have to ask my permission. In like manner, to forbid government to take private land for public use without just compensation is not a grant of power to take private land for public use with just compensation. For that, it will have to ask the States for that power, either an Amendment to the Constitution granting such power, or on an as needed basis.

There, is that clear now?

 

[eghad]

In like manner, to forbid government to take private land for public use without just compensation is not a grant of power to take private land for public use with just compensation. For that, it will have to ask the States for that power, i.e., an Amendment to the Constitution granting such power.

Not when the Constitution also gives Congress the power to provide for the general welfare and defense of the nation

To establish post offices and post roads;

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Imagine that Congress can pass laws for carrying into execution its powers....
which might provide for eminent domain in the case of post roads and building military posts

Of course they must give the property owner "due process" as required by the Fifth Amendment.

 

[The Real Hawkeye]

How is solution one any different on a practical level from the current law? Kelo was a state eminent domain seizure. If the states are compelled to carry out eminent domain seizures under the Supremacy clause, what extra protection is offered by this scheme?

No extra protection. Only the protection laid out in the Amendment, i.e., only for public use and with just compensation. It is different from current de facto law in that it is accomplished through the Supremacy Clause, i.e., the Federal Government can only require the States to act in areas where the Federal Government is specifically granted a power to do something with land, such as establish post roads, not for any and all public uses Congress can dream up.

Solution two works just fine provided no holdout problems are encountered. Holdout problems do get encountered - that is why eminent domain was part of common law. What do you do then?

Draw up new plans, or offer more money.

You don't seem to grasp the difference between your comparisons. In the Fifth Amendment, you argue that the lack of an express delegation of power means that Congress may not use eminent domain even WITH just compensation.

Correct, Congress may not.

If I made the same argument about the Third Amendment, that you are making about the Fifth Amendment. I would be arguing that just because it says "except in a manner prescribed by law" is irrelevant because there is no express delegation to quarter troops in the Constitution anyway.

Correct again.

Second, what does that tell us about your contention that the Constitution limits the federal government only to expressly named powers? Why did the anti-federalists feel a need to secure a guarantee against a power not specifically granted in the Constitution if they didn't accept that implied powers were a necessary part of the Constitution?

The anti-Federalists observed the historic tendency of all governments (especially large centralized ones) to gradually usurp powers not delegated, and they reasoned that if the outside limits of governmental power were spelled out in clear language, this would function as a bulwark against any future attempt at usurpation. The Federalist, on the contrary, argued that to suggest an outer limit to a power never delegated would itself present an increased risk that the government in question would eventually assume powers not delegated (i.e., usurp said powers), since people like you would eventually begin to argue that the outside limit would never have been established if the original power were not assumed to already exist.

Did all of the founding fathers share a several hundred year old common-law legal practice of having the head of state murder the speaker of the legislature without penalty? Because all of the founders did share a several hundred year old common law legal tradition of eminent domain.

There was no tradition of the power of eminent domain belonging to associations of several sovereign States. That tradition belonged only to sovereign States themselves. The Founders did not establish, in the US Constitution, a super state, but a mere association of States, the central body of which having been delegated only a limited number of the traditional characteristics and powers associated with statehood.

Also, is there an amendment in the Bill of Rights stating "no Speaker of the House shall be murdered by the President, except for just cause"? I got a big chuckle out of the reasoning though...

The chuckle was my intention. Glad you liked it. No, but I've already explained that to establish an outer limit to a power is not to grant the original power. That would require a statement that the Federal Government shall have the power to take property, so long as it is for public use and just compensation is provided. That's not what the Fifth Amendment says, though.

 

[The Real Hawkeye]

Not when the Constitution also gives Congress the power to provide for the general welfare and defense of the nation

To establish post offices and post roads;

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Imagine that Congress can pass laws for carrying into execution its powers....
which might provide for eminent domain in the case of post roads and building military posts

Of course they must give the property owner "due process" as required by the Fifth Amendment.

Your wildly expansive interpretation of those clauses reveals to me that you do not share Madison's vision of a Federal Government of limited, enumerated and delegated powers. That is to say, you are not a Federalist (and you are certainly not an anti-Federalist) but, rather, a consolidationalist, i.e., a believer in super statehood, or unitary national government, based in Washington, DC, which has plenary power (except where explicitely denied) to tell the States which powers they may retain. Well, sir, you should be comforted in the knowledge that you are far from alone in the world. It seems your view has become the dominant one over the past 70 years or so. I hope you get the sort of government you deserve.