tag:blogger.com,1999:blog-3829599.post112127425348041289..comments2024-01-28T00:20:40.933-08:00Comments on Agoraphilia: L&S: Takings -- an Error in Constitutional Framing?Unknownnoreply@blogger.comBlogger2125tag:blogger.com,1999:blog-3829599.post-1121307448512824382005-07-13T19:17:00.000-07:002005-07-13T19:17:00.000-07:00We should keep in mind that the Founders were cons...We should keep in mind that the Founders were constituting a federal government, and did not imagine that they were constraining the authority of state and local governments when they wrote the 5th Amendment.<BR/><BR/>I think the conflict between original intent and plain language Glen finds in the Fifth Amendment can be reconciled by acknowledging that public use and private use are not mutually exclusive -- they are overlapping. Private ownership and operation, I would think Glen and Tom would both agree, is "useful" to the public. And "public utility" embraces more than what can be piped and wired to the public. I have always assumed, maybe I'm mistaken, that privately owned and operated, and very profitable railroad companies laid their rails on property taken for "public use" -- in service of the national economy. I have trouble seeing why the local taking of local property in service of the local economy is very different.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3829599.post-1121279518186588052005-07-13T11:31:00.000-07:002005-07-13T11:31:00.000-07:00As you know, Glen, from our conversation, I think ...As you know, Glen, from our conversation, I think that you raise an interesting and valid point. If I weren't more exhausted and rushed for time, I'd try to replicate my comments, here. But I am, alas, and so must content myself with this:<BR/><BR/>1) I think the Founders and their subjects simply presumed that the new federal government would exercise the long-traditional power of taking. They thus might not have thought that Amendment V added a power, instead viewing it solely as a restriction thereon.<BR/><BR/>2) Contrariwise, though, I am convinced that Amendment III does evince a desire to vest--somewhat covertly--a power in the federal government. For details, see my paper, "The Third Amendment: Forgotten But Not Gone," available at www.tomwbell.com/writings.html.Tom W. Bellhttps://www.blogger.com/profile/02790351458154066358noreply@blogger.com