June 23, 2005
This Land Is Your Land ... NOT!
Now that five Supreme Court justices have hiked their legs (well, in Ruth Bader Ginsburg's case, squatted) on the private property rights of every American citizen, it's time for each state to, in effect, nullify the ruling in Kelo et al v. City of New London.
The Fifth Amendment to the Constitution provides a hodgepodge of protections to American citizens from overreaching governments. Unlike other amendments, the Fifth Amendment limits on power are not directed solely at Congress. In other words, these limits blanket all levels of govenment -- national, state and local. Have a look-see:
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.
That last phrase concerns eminent domain and is at the heart of the Kelo case. Normal people know that eminent domain means that a government can force a private property owner to sell his land to the government at fair market value if it is needed for a taxpayer-funded public project -- roads, dams, airports, schools, water treatment plants, etc. With the Kelo ruling, five justices -- Stevens, Souter, Breyer, Ginsberg and Kennedy -- expanded the definition of "public use" to include private commercial development. Just how profiting from a private business enterprise qualifies as a "public use" of property, the Supreme Court majority doesn't quite explain. As of today, a city or a state or Congress can take someone's home or other property so someone else can privately profit from it.
In effect, the Kelo ruling relegates every private property owner to a mere tenant on his own land subject to eviction any time a private, for-profit enterprise seduces officeholders and bureaucrats.
Not only is this ruling obviously unconstitutional, it as, as Justice Sandra Day O'Connor said in her dissent, "perverse." (Memo to Sandy: Kelo is as perverse as your upholding McCain-Feingold on the grounds that it's only a "marginal" infringement of free speech.)
How should we defend ourselves against this latest act of judicial tyranny? I've heard all kinds of chatter on television and radio from lawyers and other experts who maintain that the matter is closed. That most certainly is wrong. One option (and a dubious one at that) is a constitutional amendment. This would take years to come about and it would be a rather redundant amendment since it would basically say, "The Fifth Amendment means what it says."
The best and fastest way to nullify this latest constitutional heresy is for Americans to pressure their elected local and state representatives to outlaw this ghastly and unconstitutional application of eminent domain. Just because the Supreme Court ruled that local governments have the authority to use eminent domain to seize private property for commercial use doesn't mean that local governments are powerless to prohibit such a practice.
Before the concept of private property is reduced to a mere technicality, voters should contact their state legislators and demand that they enact a law forbidding the use of eminent domain for anything other than taxpayer-funded projects.
And if that doesn't work, well ... maybe we can pressure the cities in which Justices Stevens, Kennedy, Souter, Breyer and Ginsburg reside to seize their homes for construction of low-income housing.
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