Taking a Long Look

Taking a Long Look at Eminent Domain: Part One

2005-07-03T02:35:00.000-05:00

Elizabeth Ann Roy

The Supreme Court of the United States has ruled, in Kelo et al. v. City of New London et al. that the city of New London, Connecticut has the right to seize the private property of a group of homeowners, not directly for the city's use, but to award that property to a private land developer because the proposed project would bring new jobs and increased tax revenues. According to the ruling, the city has determined "that the [waterfront] area at issue was sufficiently distressed to justify a program of economic rejuvenation," in other words, it is an area that the city describes as suffering from urban blight, and cities may legally seize and develop the property in such areas. "As with other exercises in urban planning and development, the city is trying to coordinate a variety of commercial, residential, and recreational land uses, with the hope that they will form a whole greater than the sum of its parts."

Most people in the United States would understand "eminent domain" to mean "the right of a government to appropriate private property for public use, usually with compensation to the owner," the definition provided by the Fourth Edition of Houghton Mifflin’s American Heritage Dictionary of the American Language, available online through Yahoo! Education. Merriam-Webster's online dictionary defines the term more precisely:

Main Entry: eminent domain
Function: noun:
a right of a government to take private property for public use by virtue of the superior dominion of the sovereign power over all lands within its jurisdiction.

The requirements that the seized land be for "public use" and that the property owner be compensated are contained within the Fifth Amendment to the Constitution of the United States, which states in its entirety:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In a commentary on the Bill of Rights for Microsoft Encarta Online Encyclopedia, Jethro K. Lieberman, B.A., J.D., Ph.D. states:

The Fifth Amendment provides five important protections against arbitrary government actions. First, no one may be prosecuted for a federal crime without first being indicted (formally accused) by a grand jury. Second, a criminal suspect may be prosecuted only once for each crime. If a jury acquits the accused person, there can be no retrial. Third, a person cannot be forced to testify against himself or herself in any criminal case. This is the right against self-incrimination. Fourth, the due process clause bars the government from arbitrarily depriving anyone of life, liberty, or property. Fifth, the government may not take anyone's private property unless it is necessary for a public purpose and unless the government pays a fair price for it.

The Bill of Rights is comprised of the first ten amendments to the Constitution of the United States. Mr. Lieberman is the Associate Dean for Academic Affairs and Professor of Constitutional Law at the New York Law School and is also the author of A Practical Companion to the Constitution: How the Supreme Court Has Ruled on Issues from Abortion to Zoning and The Enduring Constitution. Note that Mr. Lieberman used the phrase "public purpose" while the Fifth Amendment uses the phrase "public use" as this is an issue in the case.

In an article on eminent domain, Microsoft Encarta Online Encyclopedia states:

. . . in public law, in its widest sense, [eminent domain is] the right or power to take private property for public use. More precisely, it is the right of the nation, or those to whom the power has been lawfully delegated, such as railroads and public utility companies, to appropriate, by due process of law, the ownership and possession of private property, and to pay the owner of the property a just compensation . . . .

Eminent domain is an inherent and necessary attribute of sovereignty, and is superior to all private property rights. It is applied widely in the United States. The federal government possesses the right of eminent domain as a sovereign state. It has exercised that right in the acquisition of land for numerous public projects. As sovereignties, within their borders and within the limits on their powers as defined by the U.S. Constitution, the states also possess the right of eminent domain. Most state constitutions specifically give the state this right.

The right of eminent domain is commonly delegated by the states to local administrative bodies such as city governments for the purpose of making public improvements. A separate enactment by the state legislature is required for each exercise of the delegated power by a local government. The states have also delegated the power of eminent domain to such private corporations as public utilities, railroads, and telegraph and telephone companies, to acquire land. The courts have held that the gain derived by private corporations is to be construed as compensation for the risk assumed for the benefit of the public.

Wikipedia discusses how the use of eminent domain has been broadened in the United States and how it is applied in other countries:

In law, eminent domain is the power of the state to appropriate private property for its own use without the owner's consent. Governments most commonly use the power of eminent domain when the acquisition of real property [land or real estate] is necessary for the completion of a public project such as a road, and the owner of the required property is unwilling to negotiate a price for its sale. In many jurisdictions the power of eminent domain is tempered with a right that just compensation be made for the appropriation.

The term "expropriation" is often seen as synonymous with "eminent domain" and may especially be used with regard to jurisdictions that do not pay compensation for the confiscated property. . . .

The term "condemnation" is used to describe the act of a government exercising its authority of eminent domain. It is not to be confused with the term of the same name that describes the legal process whereby real property, generally a building, is deemed legally unfit for habitation due to its physical defects. Condemnation via eminent domain indicates the government is taking the property; usually, the only thing that remains to be decided is the amount of just compensation. Condemnation of buildings usually occurs through health and safety hazards or gross zoning violation. In this case, the owner of the property does not lose the property, he or she merely needs to make corrections to the property to bring it up to health, safety and/or zoning codes.

The exercise of eminent domain is not limited merely to real property. Governments may also condemn the value in a contract such as a franchise agreement (which is why many franchise agreements will stipulate that in condemnation proceedings, the franchise itself has no value).
In the United States, the Fifth Amendment to the Constitution requires that just compensation be paid when the power of eminent domain is used, and requires that "public use" of the property be demonstrated. Over the years the definition of "public use" has expanded to include economic development schemes which use eminent domain to displace private homes and businesses in order to transfer it to private developments that are more profitable. In 1981, in Michigan, the Supreme Court of Michigan, building on the precedent set by Berman v. Parker, 348 U.S. 26 (1954) [1] (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=348&invol=26), permitted the neighborhood of Poletown to be taken in order to build a General Motors plant. Courts in other states relied on this decision, which was overturned in 2004 [2](http://michiganimc.org/feature/display/6334/index.php), as precedent. This expansion of the definition was brought before the United States Supreme Court in the fall of 2004 [3] (http://www.uncommonthought.com/mtblog/archives/092904-a_new_take_on_eminen.php), in Susette Kelo et al. v. City of New London et al. [4] (http://www.supremecourtus.gov/docket/04-108.htm) [the case which was decided on June 23, 2005].

In other cases eminent domain has been used by communities to take control of planning and development. Such is the case of the Dudley Street Initiative [5] (http://www.dsni.org/), a community group in Boston who attained the right to eminent domain and have used it to reclaim vacant properties in the purpose of positive community development.

In many European nations, the European Convention on Human Rights provides protection from appropriation of private property by the state. Article 8 of the Convention provides that "Everyone has the right to respect for his private and family life, his home and his correspondence" and prohibits interference with this right by the state, unless the interference is in accordance with law and necessary in the interests of security, publicity, public safety, economic well-being of the country, prevention of disorder or crime, protection of health or morals, or protection of the rights and freedoms of others. This right is expanded by Article 1 of the First Protocol to the Convention, which states that "Every natural person or legal person is entitled to the peaceful enjoyment of his possessions." Again, this is subject to exceptions where state deprivation of private possessions is in the public interest, is in accordance with law, and, in particular, to secure payment of taxes.

In France, the Declaration of the Rights of Man and of the Citizen similarly mandates just and preliminary compensation before expropriation.

In England and Wales, and other jurisdictions that follow the principles of English law, the related term compulsory purchase is more commonly used.

In his dissenting opinion, Justice Thomas follows the broadening of the use of eminent domain in the U.S. calling attention to the implications of substituting of the concept of "public purpose" for the concept of "public use" which was the phrase used in the Fifth Amendment and citing the consequences of some of the cases mentioned in the Wikipedia article above. Part Two of this series will deal specifically with the Supreme Court's decision in Kelo et al. v. City of New London et al.

Sources:
American Heritage Dictionary of the American Language, Fourth Edition: Houghton Mifflin

Merriam-Webster's Online Dictionary

"Bill of Rights," Microsoft ® Encarta ® Online Encyclopedia 2005
http://encarta.msn.com © 1997-2005 Microsoft Corporation. All Rights Reserved.

"Eminent Domain," Microsoft ® Encarta ® Online Encyclopedia 2005
http://encarta.msn.com © 1997-2005 Microsoft Corporation. All Rights Reserved.

Wikipedia

Further Reading on the Bill of Rights:
Cogan, Neil H., ed. The Complete Bill of Rights: The Drafts, Debates, Sources and Origins. Oxford University Press, 1997. Traces the origins and processes by which these rights were proposed, debated, and ratified.

Levy, Leonard W., and Kenneth L. Karst, eds. Encyclopedia of the American Constitution. 2nd ed. Macmillan, 2000. Reference set with essays on various aspects of the United States Constitution.

Levy, Leonard Williams. Origins of the Bill of Rights. Yale University Press, 2001. A Pulitzer Prize-winning historian illuminates the history of the origins of the Bill of Rights.

Rakove, Jack N. Original Meanings: Politics and Ideas in the Making of the Constitution. Vintage, 1997. Just what were the framers' intentions? This engaging study sets the Constitution in its original context.

Schwartz, Bernard. The Great Rights of Mankind: A History of the American Bill of Rights. Madison House, Rowman & Littlefield, 1992. 1998. One of the best general treatments of the subject.

For younger readers
Bjornlund, Lydia. The U.S. Constitution: Blueprint for Democracy. Lucent, 1999. For readers in grades 6 and up.

Freedman, Russell. In Defense of Liberty: The Story of America's Bill of Rights. Holiday House, 2003. For readers in grade 5 and up.

Johnson, Linda C. Our Constitution. Millbrook, 1992. For readers in grades 4 to 6.
Krull, Kathleen. A Kid's Guide to America's Bill of Rights. Avon Books, 1999. For readers in grades 5 to 8.

Further Reading on the Supreme Court:
Baum, Lawrence. The Supreme Court. Congressional Quarterly, 2000. History, operation, function, plus effects of decisions; bibliography, glossary.

Cooper, Philip J. Battles on the Bench: Conflict Inside the Supreme Court. University Press of Kansas, 1995. Notwithstanding the title, this fine historical study underscores the level of civility with which justices operate as compared to other branches of government.

Friedman, Leon, and Fred L. Israel, eds. The Justices of the United States Supreme Court, 1789-1995: Their Lives and Major Opinions. Chelsea House, 1992. A comprehensive historical account of the justices and their decisions.

Irons, Peter H. A People's History of the Supreme Court. Viking, 1999. Surveys representative cases from the past 200 years to show the Court's effect on everyday lives; for general readers.

Jost, Kenneth, ed. The Supreme Court A to Z. Congressional Quarterly, 1998. Background on landmark cases, biographies of judges, and definitions of legal terms.

Lewis, Anthony. Gideon's Trumpet. Random House, 1989. Vivid account of Gideon v. Cochran shows how judicial process resulted in evolution of law.

Schwartz, Bernard. Decision: How the Supreme Court Decides Cases. Oxford University Press, 1997. An excellent primer on the Warren, Burger and Rehnquist Courts and their decisions.

Urofsky, Melvin I., ed. The Supreme Court Justices: A Biographical Dictionary. Garland Press, 1994. A fine compilation of essays profiling 107 justices, their contributions to law, and their legal philosophies.

Witt, Elder, ed. The Supreme Court A to Z: A Ready Reference Encyclopedia. Congressional Quarterly, 1994. Covers all aspects of the Supreme Court, how it works, and biographical sketches of the justices.

For younger readers:
Aaseng, Nathan. Great Justices of the Supreme Court. Oliver, 1992. For readers in grades 8 to 12.
Horn, Geoffrey, M. The Supreme Court. World Almanac, 2003. For readers in grades 5 to 8.

Kronenwetter, Michael. The Supreme Court of the United States. Enslow, 1996. A solid introduction for readers in grades 7 to 10.

Patrick, John J. The Supreme Court of the United States: A Student Companion. 2nd ed. Oxford University Press, 2002. An A-to-Z reference for readers in grade 7 and up.

Stein, R. Conrad. The Powers of the Supreme Court. Children's Press, 1995. For readers in grades 3 to 5.

Taking a Long Look at Islam: the Sunnis, the Shi'ites, and the Rightly Guided Caliphs

2005-06-07T22:14:00.000-05:00

Elizabeth Ann Roy

Previously published in Historical E-zine of Keep It Coming, Jan. 2004

Bravely, or foolishly, this series begins in the Middle East and settles upon Islam as the one common denominator among the Arab nations. Islam has its own divisions, however, the major one being that between Sunni Islam and Shi’ites Islam.

The majority of Muslims accept the practices and beliefs of Sunni Islam. The word “sunna” refers to the example set by the personal behavior of the prophet Muhammad. The Sunna, along with the Qur'an, which is comprised of the words of Muhammad that are regarded as direct revelations from God, and the Hadith, which is comprised of the other sayings and teachings of Muhammad, form the basis of Islam and serve as a guide to spiritual, ethical, and social life for all Muslims. This much is accepted by all Muslims.

The differences between the Sunni and the Shi’ites include matters of belief and the way in which the Qu’ran is interpreted, but they began with a conflict over who should succeed Muhammad as Caliph or leader upon Muhammad‘s death in 632 A.D.

The Shiat Ali, or Party of Ali, believed that Muhammad had chosen his cousin, Ali ibn Abu Talib, as his successor. Muhammad had invited Ali to live in his home from the time Ali was only six years old, and Muhammad had allowed Ali to marry Muhammad’s favorite daughter and only surviving child, Fatima. In 622, Ali had slept in Muhammad’s bed on the night when, out of fear of assassination, Muhammad left Mecca for Yathrib, later renamed Medina. Ali also fought in all but one of the battles fought by Muhammad, including joining with Muhammed to defend Yathrib and Islam against the attacks by the Meccans. Ali then fought on with Muhammad to dominate Mecca.

Mecca, in 610 A.D., at the time Muhammad had the vision in which Gabriel proclaimed him to be a prophet, was the center of several polytheistic religions. Muhammad’s tribe, the Quraysh, was prominent in the city, and that, combined with his growing following, made his monotheistic beliefs a threat to the town’s economy, which depended on the pilgrimages made to the many pagan shrines in the area. The clan leaders of Yathrib had already accepted Muhammad as a prophet and had invited him to the town in 620 to arbitrate disputes between their clans, disputes which could turn violent.

The Shiat Ali constituted a minority among Muhammad’s followers even in the early days of Islam. The majority, who became known as the Sunni, believed that the successor should be chosen by a consensus, which left Ali without sufficient support. Abu Bakr, Muhammad’s father-in-law, the father of Muhammad’s favorite wife, Aisha, and one of his earliest followers was selected. The Shiat Ali eventually accepted the consensual elections and also supported the next three successors.

Upon the death of Abu Bakr, late in August of 634, Umar ibn al-Khuttab or Umar I, the father of Muhammad’s third wife and another early follower of Muhammad‘s, succeeded as Caliph. Umar died in November of 644 and was succeeded by Uthman ibn Affan, who, like Ali, was a son-in-law of Muhammad.

Muhammad, Abu Bakr, Umar, and Uthman were all members of the Quraysh tribe, but Uthman was a member of a different clan, the Umayyads, a clan which had been prominent in Mecca before the ascendancy of Muhammad, the hostile Mecca which Muhammed had fled and had then fought to dominate. Uthman was also a member of the merchant class with little experience in warfare, and this further set him apart from the previous Caliphs.

Abu Bakr, although he left the military leadership to others, was embroiled in the Riddah Wars, or the Wars of Apostasy, against Arab tribes who, in order to both avoid the zakat, or alms tax and regain self-governance, had renounced Islam upon the death of Muhammad in favor of supporting their own local prophets.

After ending these wars, Bakr successfully advanced against both the Byzantine Empire and the Persian Sassanids, both drained by years of battle and more than a century of rivalry. He captured lands in present day Syria and southern Iraq and provided his army with the opportunity to gain more converts to Islam and take more plunder.

Umar assumed the epithet of amir-al-mum-inin, Commander of the Believers, and captured Damascus in September 635. By 636, he effectively ended Byzantine rule in the fertile crescent of the Tigris and the Euphrates. In 638, he captured Jerusalem, and by 642 he had moved into and captured Khãzest~n or Khuzistan, an area in present day southwestern Iran. Alexandria, to the west, in Egypt, had already fallen to another Muslim army in 641.

Under Uthman, however, opportunities for conquest and plunder diminished for the armies, but wealth continued to flow to Yathrib, to Uthman, and to those, largely from his own clan, whom he appointed to positions his bureaucracy. The army had always opposed him, but his support among others also began to wane.

When a group of volunteer soldiers raised the issues of pensions, distribution of revenues, and land allocation, Ali took up their cause and argued on their behalf, but in 656, he took no part when groups of soldiers from Iraq and Egypt rioted in Yathrib and began stoning Uthman in the mosque. Uthman agreed to reforms the soldiers wanted, but as a group of the men were returning to Egypt, they intercepted a message to the governor of Egypt commanding that they be punished. They returned to Yathrib in June and, fearing that Uthman might have sent a messenger to Syria as well as to Egypt and that a Syrian army might be on the way, they broke into Uthman’s home, murdered him, and convinced Ali to assume the Caliphate.

Ali had no part in the murder, but Uthman’s clan, the Umayyad, and Muhammad’s favorite wife, Aisha, daughter of Abu Bakr, declared Ali had gained the Caliphate unjustly and joined forces to oppose him. A civil war, which became known as the first fitnah, or trial, because it tested the unity of the Islam, ensued and lasted from 656 to 661.

In the first battle, in December of 656, Ali defeated an army of Aisha’s supporters. He then moved his capital to Al Kufah, a city founded by Umar 1, because he believed his support was stronger there. Muawiyah, the governor of Syria, was a member of Uthman’s clan, the Umayyad, and rejected Ali. He demanded the right to avenge the death of his relative, and in 657, he attacked Ali’s forces at the Plain of Siffin in Syria, near the largest bend of the Euphrates River. When the battle turned against him, he sought a way out and offered to abide by an arbitrated decision. If the two chosen arbitrators agreed that Uthman had been killed justifiably under Islamic law and, through his own mistakes, had brought his death upon himself, his slayer would be seen as an executioner rather than a murderer, and the Umayyad’s claim of revenge against Ali would be removed.

Ali agreed to Muawiyah’s proposal, but his more extreme supporters, who became known as the Kharajites, or the leavers, withdrew in protest. They declared that Ali was enjoined by the Qur'an to fight rebels until they obeyed and that the outcome of the battle would have shown the decision of God in the matter. Instead, Ali had, in their eyes, bowed to the will of man in seeking the decision of the arbitrators. In that, they insisted, Ali was morally wrong.

When, in 658, the decision of the arbitrators went against Ali, he too, belatedly, declared that the arbitration and verdict were not supported by Islamic law and appealed to the Kharajites to return. When they refused, Ali turned on them and massacred many. Most of the rest of Ali’s forces regarded the Kharajites dissent as a pious act. Shocked and infuriated by the massacre, they abandoned Ali, forcing him to return to Al Kufah. Ali tried to continue the war from there, but in January of 661, he, in his turn, was murdered by a Kharajites.

After discouraging Ali’s son, Hasayn, from coming forward, Muawiyah declared himself Caliphate. The majority of the Muslims accepted him. The Shiat Ali did not. They returned to their claim that Ali had been chosen by Muhammad and by God himself to succeed Muhammad. They rejected Muawiyah; denounced Abu Bakr, Umar, and Uthman as usurpers; insisted that Ali had been unjustly deposed, and proclaimed that the Caliphate should belong hereditarily to Ali’s family. The main difference between Sunni and Shi’ite Islam still lies in the belief of the Shi’ites that only the family of Ali should hold the Caliphate, and the belief of the Sunni, that the Caliph should be chosen by consensus.

Even though the Shiat Ali reject three of them, these first four Caliphs---Abu Bakr, Umar I, Uthman, and Ali—are known collectively as the al-Rashidun or the rightly guided caliphs because they are regarded by later scholars as Muhammad’s truest and most virtuous followers. Their era ends with Muawiyah. Muawiyah’s Caliphate represents the beginning of the Umayyad dynasty.

Sources:
“Iraq -- A Country Study,” The Library of Congress
http://lcweb2.loc.gov/frd/cs/iqtoc.html

"Islam, Spread of," Microsoft® Encarta® Online Encyclopedia 2004http://encarta.msn.com/ © 1997-2004 Microsoft Corporation. All Rights Reserved.

"Kharajite," Microsoft® Encarta® Online Encyclopedia 2004http://encarta.msn.com/ © 1997-2004 Microsoft Corporation. All Rights Reserved.

"Shia Islam," Microsoft® Encarta® Online Encyclopedia 2004http://encarta.msn.com/ © 1997-2004 Microsoft Corporation. All Rights Reserved.

"Sunni Islam," Microsoft® Encarta® Online Encyclopedia 2004http://encarta.msn.com/ © 1997-2004 Microsoft Corporation. All Rights Reserved.

Further Reading:
Suggested by Microsoft Encarta Online Encyclopedia 2004
http://encarta.msn.com/ 1997-2004 Microsoft Corporation. All Rights Reserved.

Armstrong, Karen. Islam: A Short History. Modern Library, 2000. A concise overview that attempts to clear up Western misunderstandings of the faith

Cleary, Thomas, trans. The Essential Koran: The Heart of Islam. HarperCollins, 1993, 1994. An annotated translation of the core spiritual wisdom fo the Qur’an (Koran).

Dawood, N. J., trans. The Koran. Penguin, 1990. A revised, updated translation of the Qur’an (Koran), the holiest Muslim text.

Hunter, Shireen T. The Future of Islam and the West. Praeger, 1998. A pragmatic analysis of relations between Islam and the Western world.

Jones-Bey, Hassaun, Ali. Better Than a Thousand Months: An American Muslim Family Celebration. Ibn Musa, 1997. The culture and celebrations of the Islamic world; for younger readers.

Lawrence, Bruce B. Shatttering the Myth: Islam Beyond Violence. Princeton University Press, 1998. Argues that Islam cannot be reduced to stereotypes such as the hostile religious fanatics battling unbelievers.

Schimmel, Annemarie. Islam: An Introduction. State University of New York Press, 1992. Clear, concise introduction to Islam.

Viorst, Milton. In the Shadow of the Prophet: The Struggle for the Soul of Islam. Anchor, 1998. Investigates the Middle Eastern struggle to reconcile Islamic law and beliefs with political power in the modern world.