Real Estate & Property Law

Elena Kagan's ability to answer two questions

By Alan Ackerman

Investors.com

George Will has decided to challenge Elena Kagan's ability to answer two questions.  The questions are:
    In Federalist 45, James Madison said, 'The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.'

    The second question is:
    The Fifth Amendment mandates 'just compensation' when government uses its eminent domain power to take private property for 'public use.'  In its 2005 Kelo decision, the court said government can seize property for the 'public use' of transferring it to wealthier private interests who will pay more taxes.  Do you agree?

    If one were to read these two questions and think about it, we might find ourselves in the untenable position that the federal government has severe limitations on its authority, and delegated powers not assigned to the federal government remain in the state.  The subsequent question alludes to the Fifth Amendment to be utilized only for the takings of private property for 'public use'.  
    These two questions offer the very contradiction which we struggle with on a daily basis.  When is the state limited from the exercise of its police power?  How is the Fifth Amendment to be applied to the states when it is clearly only applicable to the federal activity? Is it the Fourteenth Amendment which controls the application of the Bill of Rights to the state? 

Full post as published by National Eminent Domain Blog on July 08, 2010 (boomark / email).