Property rights under assault

Here - Eminent Domain Abuses Common - we have another example of how even the friends of the constitution can get sidetracked:
"The Fifth Amendment allows government to legally take private property for “public use” to build needed services like bridges and roads; the legal term for the government’s prerogative over private property is “eminent domain.” However, until Gov. Pataki signed last month’s bill, a property owner had no way of knowing when his home or place of business had been condemned. Property owners also had no way of knowing that they have the right to fight the arbitrary confiscation of their property. Abuse of eminent domain is a violation of the Fifth Amendment." (In the context here, property means real estate - land and things attached to the land.)

But the Fifth Amendment is not a grant of power to the federal government, and if it doesn't grant power to the federal government, you can't stretch the incoporation doctrine to say that it is a grant of power to the states. For the constitution to grant a power to the states, it would have to be by way of an amendment to restore a power previously delegated to the federal government since the states, as a matter of law and history, precede the constitution and the federal government acquired its powers from the people acting in their capacity as sovereigns of their respective states.

The Fifth Amendment is a part of the Bill of Rights, a series of amendments which were sent to the states by the first congress because a number of states had been reluctant to ratify the constitution without a promise of more specific statement of certain of the rights retained by the people, either in their private capacity or through the states. There were only 11 states when they were proposed, but 14 by the time they were ratified. Read all ten, there is not a single grant of power to the federal government in any of them.

What does the constitution say about real estate? Article II, Section 8 sets forth the powers of congress. Paragraph 7 gives congress power "[t]o establish post-offices and post-roads" and Paragraph 17 gives it power "[t]o exercise exclusive legislation" over DC and "to exercise like authority over all places purchased by consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings." Article III, dealing with the jurisdiction of the federal courts, provides in Section 2, Paragraph 2, federal jurisdiction over, inter alia, suits "between citizens of the same State claiming lands under grants of different States;" and Section 3, Paragraph 2 limits the power of congress to punish treason by, inter alia, prohibiting "forfeiture except during the life of the person attainted."

WARNING: Really dull historical digression, skip this paragraph.
As successor to the government under the Articles of Confederation, the new US government inherited the Northwest Ordinance passed in 1787 before the constitutional convention met. This provided for the US to take control of the area ceded by Britain under the Treaty of Paris lying north of the Ohio River and west of the present western boundary of Pennsylvania. Virtually all of this are was claimed (as was a large chunk of Pennsylvania) by Virginia, and various parts of it were subject to additional claims, principlally by New York, Connecticut, Massachusetts. Besides the Indians and various British and French trappers and traders, there were already a few thousand settlers residing as squatters or as claimants to land sold or granted by various seaboard states. Connecticut, for example, used its Western Reserve in what is now NE Ohio to provide grants of land in lieu of cash payments for its veterans of the Revolutionary War. The Northwest Ordinance provided for surveying the land, handing out allotments to settlers, churches, schools, and courthouses, and eventually erecting five states (Ohio, Michigan, Indiana, Illinois, and Wisconsin). This established a precedent generally followed when other territory was added to the US by the Louisiana Purchase, the Mexican War, etc. But none of that answers our question about eminent domain.

The Fifth Amendment, far from establishing a power of eminent domain only says this about property: that no criminal defendant in a federal court case may "be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

Eminent domain is nowhere mentioned nor contemplated in the constitution. Eminent domain traces back to the royal prerogatives of the sovereign in Britain where all land titles were held at the sufferance of the crown. When the colonies became independent states the people of the states became sovereign acting through their respective state governments. The power of eminent domain thus passed to the states to be regulated under their constitutions and laws. This was not one of the powers which the people delegated to the federal government in ratifying the constitution.

As further evidence, note that part of Article II, Section 8, Paragraph 17 quoted above. In order for congress to exercise legislative authority over land purchased by the US government in a state, the consent of that state's legislature must be obtained. It is obvious that the one who gives permission is the sovereign. Moreover, the reference is to land acquired by purchase, not condemnation. In his debates on the constitution, Alexander H. Stephens makes repeated mention of the retention of the power of eminent domain by the states as evidence that they retained the attributes of the sovereign in all areas not specifically delegated to the US government.

I uinderstand that it is pointless to argue the actual constitution to judges. Judges are just like you and me, they want to be free. They just get to be more free. And one of the ways they get to be more free is to free themselves from the actual constitution in favor of the jury-rigged contraption that judges have cobbled together to suit their notions of what it should have said if they had written it instead of those non-entities who gathered in Philadelphia in 1787 - you know who I mean, George Washington, Benjamin Franklin, James Madison, Rufus King, Roger Sherman, Alexander Hamilton, etc. But when we are speaking to the public, constitutionalists ought to make reference to the real constitution.

Now, on the merits of the New York case described in the article linked above, it is repugnant to the people of a free republic that such a grave matter as seizing a citizen's property would not require notice specifically directed to the owner. After all, the government knows the location to which they send tax bills, they can send a registered letter. They know the location of the property, they can send a constable or marshal to serve notice on the person found in charge or to post it prominently on the premises if no one is there. The law generally requires one or both of these methods for a landlord to start eviction proceedings, why should the state do less to seize the property.

The "legal notice" section of the newspapers is a racket. The prices are usually higher than other classified ads and the newspapers don't want to give up this easy revenue. Publishing in a newspaper may be an appropriate way to provide notice to third parties (creditors, neighbors, the general public, etc.) or when the defendant's whereabouts are unknown, but it is hardly adequate for a taking of real property. Is every citizen required to read the approved newspapers in his vicinity every day to protect his rights?