In her January 15, 2012 OpEdNews article, Occupy the Neighbourhood: How Counties Can Use Land Banks and Eminent Domain, Ellen Brown writes:
“Local governments have the power of eminent domain: they can seize real or personal property if (a) they can show that doing so is in the public interest, and (b) the owner is compensated at fair market value.“
Eminent domain is the power of government to take private property for public use. It is governed by the relevant section of the Fifth Amendment to the U.S. Constitution, which states:
“[N]or shall private property be taken for public use, without just compensation.“
The term “public use” was always intended to mean owned by the public, and not by private entities.
This principle was overthrown nationwide by the U.S. Supreme Court decision, Kelo v. New London (2005).
If public use meant for private use, then well-connected private entities could use the power of government to seize private property for their own private use, and that is contrary to one of the goals of the Constitution, in protecting private property.
She writes that in the case of seizing properties being foreclosed on by the banks:
“The public interest part is obvious enough.“
Except that it’s not in the public interest to seize private property from one individual to give it to another under this clause of the Constitution.
I do want to point out that I part company with the majority of self-styled libertarians and conservatives who say that The Bill of Rights applies to corporations, of which banks are. I hold that the Bill of Rights applies only to individuals and non-corporate associations of individuals, since only individuals have “rights.” Corporations are creatures of government, as Stefan Molyneux so clearly espouses, and, therefore, they have no rights.
But the question of whether corporations are covered by the Fifth Amendment to the Constitution is separate from whether the “public use” provision refers to whatever government says is for public use.
I do find it odd that she takes the originalist position on the power of Congress to coin money as meaning only the power to strike coin, while not taking an originalist position on this and several other key provisions of the Constitution.
While it can be argued that “public use” has a flexible definition that “coin money” doesn’t, those who say coin money means the power to create money would take exception with that view. In any case, I don’t see her making a consistent application of originalist interpretation in these two cases.
For more on eminent domain, see my articles:
1) The Supreme Court of the United States isn’t interested in protecting liberty or property
2) A gold mine of opportunity and a deficit of principle
There have been times I have agreed with Ellen Brown, but on this, I can’t agree.
Good thought provoking articles. I like your contrarian and fair approach.
[...] Challenging Ellen Brown on how counties (can’t) use eminent domain (fauxcapitalist.com)
I think it would be best for her to focus on the fact that banks have no right to foreclose on anyone because banks don’t loan anything and what they’re calling “interest” is actually embezzlement(or a term not yet coined). But, if anyone with as much exposure as she has told the truth, they probably wouldn’t be around for very long.
My email to a progressive radio host:
in her recent article about the MERS system, she argues that eminent domain can be used to seize properties that the banks are foreclosing upon, except that that interpretation of the Fifth Amendment’s provision requiring just compensation for the taking of private property for public use is a double-edged sword, and is used by private corporations like Wal-Mart to seize private property at a discount compared to the use they derive from it.
This wouldn’t be allowed under an originalist reading of the provision, which was the case prior to the 2005 U.S. Supreme Court decision in Kelo v. New London, and I think corporations have the upper hand in allowing it to persist.
In Canada, they used the same interpretation in 2010 to take away a man’s property and award it to a huge gold mining operation.