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Fearless Philosophy For Free Minds: Open Source Amendment Project Completed

Monday, July 18, 2005

Open Source Amendment Project Completed

Stephen Macklin at Hold the Mayo has completed his project to amend the Constitution to reaffirm property rights (or maybe you might say ‘clarify’ for our elected and unelected officials) to every U.S. citizen. Rather than pushing the amendment I authored shortly after the Kelo ruling, I’ve decided to throw my support behind Macklin’s effort and I encourage all of my readers to do the same. Though not much of my proposed language survived the ‘open source’ amendment, Macklin did incorporate my ideas and many others into the finished product. Here is the finished ‘open source’ amendment (Revision 12):

The right to ownership of property being the cornerstone of liberty, no government, or agency thereof, within these United States shall have the authority to take property from any person, corporation, or organization through exercise of eminent domain for other than a public use without just compensation.

Public use shall be understood to be property the government owns or retains the paramount interest in, and the public has a legal right to use. Public use shall be understood to include property the government owns and maintains as a secure facility. Public use shall not be construed to include economic development or increased tax revenue. Public use of such property shall be maintained for a period of not less than 25 years.

Just compensation shall be the higher of twice the average of the price paid for similar property in the preceding six months, or twice the average of the previous 10 recorded similar property transactions. Compensation paid shall be exempt from taxation in any form by any government within these United States.

There has been some thoughtful criticism with our idea of amending the Constitution. Some have said the ‘takings clause’ of the Fifth Amendment is perfect as it is. I would have to disagree. Right or wrong (wrong), 5 of the nine Justices on the Supreme Court took the takings clause to mean governments can take property from one private entity and give or sell it to another. The Fifth Amendment is due for some clarification.

I do not buy into this idea that the Constitution is a living, breathing document. The English language and the world, however; is living and breathing. What I mean is that language evolves; meanings and understanding of words change. Also, we have to think about nuances in the country and the world.

Back when Madison penned the Constitution and the Bill of Rights, he had no way of foreseeing the multi-national corporations we have today. It never occurred to the founders that someday a big-box store such as Wal-Mart or The Home Depot would have so much influence over the political process on every level of government. Clearly, Madison et al believed that the government would take property as a last resort and only for what they believed to be legitimate functions of government. Over the 200 plus years of the history of the United States, ‘legitimate functions of government’ has also evolved.

I believe this proposed amendment is much less ambiguous than the takings clause of the Fifth. Is it perfect? No. Remember though, perfect is the enemy of good. In my estimation, this amendment is good and would be good for our country and its citizens. If you agree with me, join the Open Source effort and sign the petition. Another letter to your congressman wouldn’t hurt anything either.


Blogger Perry Eidelbus said...

Actually, Madison and Jefferson were fearful of huge banks indirectly controlling an entire nation's destiny (which was the case with Great Britain). I think it was Jefferson who said he feared banks more than standing armies. Andrew Jackson shared the sentiment and outlined it in his 1832 letter to Congress as to why he vetoed renewing the Bank of the Unites States' charter. This not unlike the fear of large corporations, which I generally consider unwarranted.

What our Founding Fathers conceived was an ideal of liberty that enumerated very specific ideals of a limited federal government, to which was added a Bill of Rights to assure Patrick Henry and other opponents of the Constitution. Key to limiting the federal government's power was this simple phrase that is, well, simply ignored:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

I'm one of those who says we don't need more laws, just good public officials who know what the Constitution says. Chuck Schumer obviously doesn't, because as I pointed out about his remarks against John Roberts' nomination, he said, "Now that he is nominated for a position where he can overturn precedent and make law, it is even more important that he fully answers a broad range of questions." (emphasis added)

As I pointed out before, even the most specific of restrictions can be perverted. Moreover, being a firm believer in the subjective theory of value, I fully oppose any law, especially a Constitutional amendment, that establishes a minimum price for government to meet. What we consider a high price may not be enough for certain people, who value their homes for very sentimental reasons. A family may not want to sell their home any price, because no amount of "just compensation" will compensate them. Whether it's the time they've owned the property, the labor put in to making it theirs, or the difficulty they had in securing the house, the rest of us have no right to impose an ultimate sale price on them. Should they be allowed to inhibit progress? I say, absolutely! We're a nation (supposedly) dedicated to the rights of the individual, not what's best for the majority. Besides, why is any particular location so critical that a government must have it, without exploring other options?

I shop regularly at Wal-Mart, Target and sometimes Home Depot. I choose their lower prices instead of sustaining local businesses that charge higher prices. Still, I disagree with the "subsidies" (which are actually tax breaks) that they -- or any business -- receive. If they are truly competitive, then they ought to be able to conduct business without tax breaks targetted specifically at them, special zoning, etc.

Apply the rule of law, and people will prosper in liberty and commerce. This includes eliminating all state "help" to businesses so they can all compete fairly. And if smaller stores lose to Wal-Mart, so be it. That's the free market, weeding out inefficient participants and encouraging the remaining ones to stay on their toes. It maximizes society's economic production.

Most of the "government helping" problem could be eliminated by eliminating all taxes on businesses. That would leave government with only one method of "assisting" their preferred businesses: direct subsidies, which voters tend to frown, as opposed to "tax breaks" that they might misconstrue as a good thing. For the sake of space, I won't delve into illegal actions like corruption, or large corporations seeking heavy regulations that only mildly hinder them but destroy new market entrants.

Many leftists today believe that businesses don't pay their fair share of taxes. It's actually a ludicrous notion that businesses pay taxes at all: they simply pass them on to their customers. The problem with taxing businesses is that it's not very transparent at all. The cost of paying taxes to a business is much higher than government calculating a slightly higher sales tax. Both will generate the same tax revenue, but businesses all over won't have to hire CPAs, so overall consumers will pay slightly less. For the same reason, a flat income tax (even with a sizable deduction per individual) is far preferable to our current system that costs Americans 6 billion hours each year.

7:36 PM  
Anonymous Anonymous said...

First. Thank you, Stephen, for your support and you input during the process.

Second. I think, Perry, you make the mistake we often made while crafting the language of our amendment of confusing the concepts of fair and just. While even what is essentially double market value my not be fair in every case, the same objectively determined standard applied to everyone is just. It would be the rule of law applied equally to all. The reasons for the doubling factor are to 1) compensate property owner for the hardship of having a property taken 2) put government in a postition where they have to be very judicious with the exercise of eminent domain.

Is there a likelyhood that this language or anything like it will find its way into the Constitution? I would say the odds are fairly long. Is it possible that we could make enough noise that government gets the message that they have gone too far and perhaps have an influence in turning the tide toward more limited government? I think so.

2:00 PM  
Blogger Perry Eidelbus said...

Applying the same formula to everyone is technically the rule of law, but still a bad law. You're forgetting that people place a subjective value on their possessions, which is their right.

The problem with such a formula is that it gives government a specific mark to reach. When government must meet the property owner's own asking price, then government can change its plans to exclude that property. This is a good thing because government will search for the cheapest way out, instead of relying on the taxpayers' pocketbooks to pay whatever the law demands.

What if a family labored hard to build their dream house, only to be forced to sell it for less than their sentimental attachment? How do you define "similar property"?

The answer isn't more laws that can easily tie our hands, but better judges.

4:25 PM  
Blogger Stephen Littau said...


You made some very good points, and I agree with you for the most part. There are a few things you wrote which stood out that I would like to discuss further.

“I'm one of those who says we don't need more laws, just good public officials who know what the Constitution says.”

I definitely understand where you are coming from on that point. I would agree that most laws are unnecessary and erode away our liberties. I do not agree that we should cease making laws, however. There are a number of laws I would like to see passed such as the Fair Tax and the repeal of the Sixteenth Amendment. Not all laws are equal; the way I see it there are pro-liberty laws and anti-liberty laws. The Open Source Amendment which re-affirms property rights for individuals is such a law.

You also say that the president should nominate better judges. If we have to depend on the president (regardless how good he or she is) to appoint better men and women to the courts (which would help), we are no longer a nation of laws but of men. Better, clearer pro-liberty laws is the better way.

We also have to consider that judges rely heavily (entirely too much) on precedent. For the sake of argument, let’s say our Open Source Amendment passed. Shortly after the OSA passes, a local government such as New London decides to invoke eminent domain. Because there has been a Constitutional change, the judges can no longer rely on precedent because there isn’t any. The judges are forced to base their decision on the facts of the case in light of the OSA. The decision the court makes will create new precedent for other courts to follow…case law.

This leads me to another point. I know what you mean about judges ‘making law.’ For all practical purposes, they do…based on the facts of a particular case and how the law applies (in theory at least). Again, courts are guided by the precedents of existing case law.

As to my comments about Wal-Mart and Home Depot: I am in no way trying to disparage either of these businesses. I patronize both of them often. I only used them as an example because the big-box stores are some of the biggest offenders of eminent domain abuse. For the most part, I do not have a problem with how Wal-Mart does business. I like the low prices and other companies should try to emulate them rather than bring them down. The only problem I have with Wal-Mart is when they use the force of government to get what they want. I am very much a capitalist but I think we are being very naïve if we believe that large corporations do not have more influence than the average individual. I fear BIG government a lot more than I do BIG business. When the two forces combine, that’s one of the scariest things of all.

As to Stephen Macklin’s comments, I absolutely agree. If a minimum price is not set for the government to pay, the government will pay the lowest figure it can come up with. I am not opposed to eminent domain when the government uses it responsibly. The founders understood the need for government to use it in certain circumstances. They must be spinning in their graves with how the Fifth Amendment has been perverted. This is precisely why it must be clarified.

12:59 PM  
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2:04 AM  

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