Comment: The Third also has interesting implications for so-called

(See in situ)

The Third also has interesting implications for so-called

Eminent Domain.

The Fifth provides that "no property shall be taken for public use without just compensation."

It is from this that government here in the U.S. thinks it has the sovereign power of Eminent Domain.

The problem with this view by government is that in this country, the government is only sovereign with respect to foreign countries - NOT to the People. In the USA, the People are the sovereigns. Thus it is impossible for the government to have any claim of sovereignty over the rights of the People.

There is also an issue about what this power really is, it's true purpose, and when it is lawful to use it.

The word "imminent" and "eminent" have a common origin. The first being known in modern times to mean "impending or about to happen." The latter, meaning "primary, first, or hanging over."

It is my contention that the idea of Eminent Domain and the context of the Fifth and Third Amendments, means that this power is limited in two ways:

#1 - it can only be a taking for public USE.

Use is distinct from ownership or title. One can have a right of use, a usufruct, but not own property. This right can also be limited in scope, or even duration. The right does not usually include the right to transfer this right, or the right of disposal of the property itself.

There is nothing in the Fifth about transfer of ownership or title, only to take property for public USE.

The problem is most people focus on the word "take" to mean "transfer of title." But you can take possession of something, ONLY for use, and not as a matter of ownership. It is this distinction that is critical. And the 5th even highlights this distinction by declaring that the taking shall only be for a public USE, thus making it clear, that it does not confer any power to force sale of full ownership rights in property.

#2 - it must be for an emergency circumstance.

The purpose of the power is not to simply commandeer title to property because a government wants to build a road, school, or other public structure. The purpose of the power is to grant a limited violation of the individual right of full ownership over property for the short term need of having to deal with an emergency situation which threatens the life, liberty or property of the People.

An example of this would be repelling a foreign invasion, dealing with an insurrection or rebellion, perhaps maybe even responding to a natural disaster to rescue or recover victims, and provide them assistance.

More specifically, it could be necessary perhaps to conduct troop movements through your corn field, destroying part of it in the process. Perhaps your field is needed for an encampment as a prelude to a battle. Or your shop or house is needed for the camp, or as a medical station. These would be cases where it would be appropriate to temporarily take property for public use, as long of course, as the owner was justly compensated, for their lack of use during that same time. (and any damage to property as a result, if not requiring restoration upon returning the property)

On a smaller level, this is also how the militia could be pressed to put their personal armaments into service, or even themselves into service, for such emergencies, but of course, only if they are PAID to do so under the just compensation clause.

The Third Amendment limits this even further.

It requires that the owner of a house must consent to quartering of troops, even IF he is offered just compensation.

If the currently practiced theory of Eminent Domain were true and correct, if it can be used to permanently take property ownership and title, and not just for use, (and even now for mere "benefit" ala KELO) then the Third Amendment would be rendered completely moot.

All the government would need to do in order to violate the 3rd, would be to seize your house in an Eminent Domain action and you would have no say, because you'd no longer be the owner and you couldn't refuse sale.

The 3rd Amendment exposes that the current idea of Eminent Domain is entirely wrong, and is much abused, even before KELO.

Of course the implications of this are vast.

Instead of using force to lay down roads, or erect public buildings, governments would have to use reason. They'd have to offer a price you are willing to accept, and not be able to force you to sell. Or, they may have to negotiate a rent or right-of-way with you, AND compensate you for your loss of use of the property.

Certainly, things wouldn't get built the way they do now, but they'd still get done if they are truly needed. Force is not an option because you "want" to accomplish something. It is barbaric and uncivilized.

Understanding the implications of the 3rd amendment, and the nature of the words of the 5th, are key to understanding the true limits of government power in this area.