2 law Discussions
Dickson34
week2_Discussion_replies.docxThe Supreme Court is the ultimate arbiter of constitutionality
Contains unread posts
Edward Pedrero posted Oct 28, 2020 3:46 PM
Subscribe
"The United States Supreme Court taking powers for real property are just and necessary. No modifications need exist to the Takings Clause at this time."
I affirm this proposition. The Supreme Court is the ultimate arbiter of constitutionality and the taking powers for real property are just and necessary. The Takings Clause of the Fifth Amendment to the United States Constitution reads as follows: “Nor shall private property be taken for public use, without just compensation.” In understanding this provision, it is important to keep in mind the reasons behind it. The Clause is intended to uphold the principle that the government should not single out isolated individuals to bear excessive burdens, even in support of an important public good. When this happens, the payment of “just compensation” provides a means of removing any special burden.
Enumerated in the Fifth Amendment of the U.S. Constitution, is the Eminent domain Clause, which gives states and the federal government the right to seize property for public use in exchange for just compensation (based on fair market value for a piece of land). The concept of eminent domain is connected to the functionality of the government, because the government needs to acquire property for infrastructure and services like public schools, public utilities, parks, and transit operations.
In Kelo v. City of New London, Connecticut, 545 U.S. 469 (2005), the Supreme Court held that general benefits which a community would enjoy from the furthering of economic development is sufficient to qualify as a "public use."
To answer the second part of the this proposition of whether no modifications need exist to the Takings Clause at this time. I personaly think that there is always room for improvement. With the advent of the modern welfare state, more challenges than ever before are raised under the banner of the Takings Clause. The breadth of state action and the diversity of its interactions with private owners have multiplied the gray areas in which the government burdens some owners more than others. The key areas of dispute about the meaning of the Takings Clause relate to how much the government may burden an individual property owner before triggering its obligation to pay just compensation. These are the areas on which we shall offer our separate and different views.
References:
https://constitutioncenter.org/interactive-constitution/interpretation/amendment-v/clauses/634
https://www.law.cornell.edu/wex/eminent_domain
https://law.justia.com/cases/federal/appellate-courts/F2/189/247/273302/
Ed Pedrero, JD
Contains unread posts
Andrea Schoop posted Oct 27, 2020 6:26 PM
Subscribe
The proposition set forth is this: “The United States Supreme Court taking powers for real property are just and necessary. No modifications need exist to the Takings Clause at this time.”
This is a very complex proposition to consider. I, ultimately, oppose this proposition. I do not agree that the United States Supreme Court’s taking powers for real property are always just and I do believe that modifications need exist to the Takings Clause. The Takings Clause of the Fifth Amendment reads as follows: “Nor shall private property be taken for public use, without just compensation” (Epstein & Penalver, 2020). Just compensation, as required by the Constitution, is that which constitutes “a full and perfect equivalent for the property taken” (Cornell Law School, 2020). Just compensation may seem agreeable, in theory, however when said just compensation is being determined by the very government that is taking the real property, the “just” in just compensation may actually be quite unjust. For example, what if a property owner does not agree with the just compensation amount decided by the court and feels that he/she could sell the property at a higher price to a different buyer? The owner of the property should have the ability to negotiate or deny the taking if they consider, and can substantially prove that, the just compensation offered is, in fact, unjust. Consideration should also be taken on the historical factors of the real property, as well, such as how long the real property has been owned by the current owner and/or their ancestors, etc. There are other values to be considered besides market value. The court should not have express sovereignty in the making of the decision, in my opinion.
I further oppose this proposition as the Takings Clause has two requirements that must be met prior to government being able to impose this power; (1) the property to be acquired must be “for public use,” and (2) the government must pay just compensation to the owner, as discussed above. The term “public use” does not implicitly restrict the property to be developed in a manner in which the general public can use the property, but can also include property that is not, literally, used by the public but will serve a public purpose, such as redevelopment of an impoverished area. Again, the government gets to determine the definition of “public use”. When the government regulates the use of a person’s property, the effect on the particular person is, more often than not, unfavorable (Funk, 2020).
References
Epstein, R. A., & Penalver, E. M. (2020). The Fifth Amendment Takings Clause. Retrieved October 27, 2020, from https://constitutioncenter.org/interactive-constitution/interpretation/amendment-v/clauses/634
Cornell Law School. (2020). Just Compensation. Retrieved October 27, 2020, from https://www.law.cornell.edu/constitution-conan/amendment-5/just-compensation
Funk, Bill. (2020). CPR Perspective: The Takings Clause of the Fifth Amendment. Retrieved October 27, 2020 from https://www.progressivereform.org/our-work/energy-environment/persptakings/
