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CBOR-ED: The Eminent Domain Amendment

SECTION 1. No governmental entity, or private delegate thereof, may take private property except for public use, and not without just compensation.

SECTION 2. For purposes of this amendment, a public use exists only if the property to be taken is transferred to government ownership and control, if the general public is given a legal right to access or utilize the property, or if the entity or delegate proves by clear and convincing evidence that taking the property is necessary to eliminate a substantial threat to public health or safety.

SECTION 3. This amendment shall not be so construed as to affect any takings initiated before it becomes valid as part of the Constitution.

COMMENTARY:

The “takings clause” of the Fifth Amendment is intended to protect private property against seizure by the government in two respects: First, the property must be seized for a “public use”; second, the property owner must receive “just compensation”. The just compensation portion has rarely been a matter of controversy, but the question of what constitutes a “public use” has been a key factor in several Supreme Court decisions. Homes and businesses have been seized and destroyed simply because they were in a dilapidated-looking neighborhood, though they were not dilapidated themselves, and the city wanted to beautify the neighborhood by creating a consistent architecture in that area.

Most recently, the Supreme Court decision Kelo v. City of New London has made it possible for government to seize private property for virtually any reason so long as the government could postulate a better “public purpose” for the property than its current use. Would a hotel generate more revenue for the city than a dry cleaners? Well, then — seize the dry cleaners and give it to a hotel chain! Various states immediately moved of their own accord to pass restrictions on such seizures, but many of these restrictions have loopholes large enough to drive a bulldozer through, and some states passed no restrictions at all. (ad)

Even more frightening is the fact that some justices, though they have yet to actually so rule, are of a mind that the term “public use” in the Fifth Amendment places no restrictions on the reasons for which the government can seize property – i.e., if the government seizes your property, that’s definitionally putting it to “public use”, so you have no defense.

Obviously, then, people need a better defense against wrongful government takings than what the Fifth Amendment provides. The Eminent Domain Amendment provides that defense by explicitly stating that the government cannot seize public property except for public use – the Fifth Amendment only implies this, so it must be made explicit – and then by clearly defining what a “public use” is.

“Public use” is broken into three categories, of which I’ll just give an example of each:

  1. The government needs to build an office building, military base, or other structure for its own use.
  2. The government wants to create a park, a memorial, or something else the public can freely access.
  3. The government must condemn a genuinely-dilapidated building for the sake of public safety.

The Cultural Bill Of Rights
–CBOR-7Y: The Seven Years Amendment
–CBOR-RF: The Religious Freedom Amendment
–CBOR-2A: The New Second Amendment
–CBOR-CP: The Capital Punishment Amendment
–CBOR-ED: The Eminent Domain Amendment
–CBOR-17: The Senate Restoration Amendment
–CBOR-SC: The Supreme Court Amendment
–CBOR-QV: The Qualified Voters Amendment
–CBOR-GS: The Gender Standardization Amendment
–CBOR-MS: The Marriage Standardization Amendment
–CBOR-PM: The Protection of Minors Amendment

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