Millions Of "Jurists" Cannot Be Wrong
Yesterday, I told Thomas that he could handle the ignorance of the Supreme Court in their decision of Kelo v. New London, Connecticut. It is not that I did not want to put my thoughts in on it, but I preferred to have a sharper legal mind address it to begin with. Now that I have had a chance to review the decision, and see what people are saying regarding the decision, I can only assume one thing.
The millions of people in this nation that disagree with the five justices that decided to strip the property rights of America away know more than they do.
America was founded for two very important reasons. First, we wanted our right to practice our religion to be free; that is without interference from the government. We also did not want the government dictating what religion we should participate in, as it was in England. Second, we wanted the right tow own property without the fear of the government seizing it. Yesterday’s incompetent decision took one of those rights we wanted away.
Cox and Forkum is a site for political cartoons, and minor blogging. Today’s cartoon hits the nail on the head. Further, Justices O’Connor and Thomas emphasized the stupidity of the five justices they dissented against.
http://www.coxandforkum.com/archives/000610.html
Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property--and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.—Justice Sandra Day O’Connor
The Fifth Amendment to the Constitution, made applicable to the States by the Fourteenth Amendment, provides that "private property [shall not] be taken for public use, without just compensation." When interpreting the Constitution, we begin with the unremarkable presumption that every word in the document has independent meaning, "that no word was unnecessarily used, or needlessly added." Wright v. United States, 302 U. S. 583, 588 (1938). In keeping with that presumption, we have read the Fifth Amendment's language to impose two distinct conditions on the exercise of eminent domain: "the taking must be for a 'public use' and 'just compensation' must be paid to the owner." Brown v. Legal Foundation of Wash., 538 U. S. 216, 231-232 (2003).
These two limitations serve to protect "the security of Property," which Alexander Hamilton described to the Philadelphia Convention as one of the "great obj[ects] of Gov[ernment]." 1 Records of the Federal Convention of 1787, p. 302 (M. Farrand ed. 1934). Together they ensure stable property ownership by providing safeguards against excessive, unpredictable, or unfair use of the government's eminent domain power--particularly against those owners who, for whatever reasons, may be unable to protect themselves in the political process against the majority's will.—Justice Sandra Day O’Connor
While the Takings Clause presupposes that government can take private property without the owner's consent, the just compensation requirement spreads the cost of condemnations and thus "prevents the public from loading upon one individual more than his just share of the burdens of government." Monongahela Nav. Co. v. United States, 148 U. S. 312, 325 (1893); see also Armstrong v. United States, 364 U. S. 40, 49 (1960). The public use requirement, in turn, imposes a more basic limitation, circumscribing the very scope of the eminent domain power: Government may compel an individual to forfeit her property for the public's use, but not for the benefit of another private person. This requirement promotes fairness as well as security. Cf. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 336 (2002) ("The concepts of 'fairness and justice' ... underlie the Takings Clause").—Justice Sandra Day O’Connor
Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. Our cases have strayed from the Clause's original meaning, and I would reconsider them.—Justice Clarence Thomas
Though one component of the protection provided by the Takings Clause is that the government can take private property only if it provides "just compensation" for the taking, the Takings Clause also prohibits the government from taking property except "for public use." Were it otherwise, the Takings Clause would either be meaningless or empty. If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power--for public or private uses--then it would be surplusage. –Justice Clarence Thomas
The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever. At the time of the founding, dictionaries primarily defined the noun "use" as "[t]he act of employing any thing to any purpose." 2 S. Johnson, A Dictionary of the English Language 2194 (4th ed. 1773) (hereinafter Johnson). The term "use," moreover, "is from the Latin utor, which means 'to use, make use of, avail one's self of, employ, apply, enjoy, etc." J. Lewis, Law of Eminent Domain §165, p. 224, n. 4 (1888) (hereinafter Lewis). When the government takes property and gives it to a private individual, and the public has no right to use the property, it strains language to say that the public is "employing" the property, regardless of the incidental benefits that might accrue to the public from the private use. The term "public use," then, means that either the government or its citizens as a whole must actually "employ" the taken property. See id., at 223 (reviewing founding-era dictionaries).—Justice Clarence Thomas
Granted, another sense of the word "use" was broader in meaning, extending to "[c]onvenience" or "help," or "[q]ualities that make a thing proper for any purpose." 2 Johnson 2194. Nevertheless, read in context, the term "public use" possesses the narrower meaning. Elsewhere, the Constitution twice employs the word "use," both times in its narrower sense. Claeys, Public-Use Limitations and Natural Property Rights, 2004 Mich. St. L. Rev. 877, 897 (hereinafter Public Use Limitations). Article 1, §10 provides that "the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States," meaning the Treasury itself will control the taxes, not use it to any beneficial end. And Article I, §8 grants Congress power "[t]o raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years." Here again, "use" means "employed to raise and support Armies," not anything directed to achieving any military end. The same word in the Public Use Clause should be interpreted to have the same meaning.—Justice Clarence Thomas
The public purpose interpretation of the Public Use Clause also unnecessarily duplicates a similar inquiry required by the Necessary and Proper Clause. The Takings Clause is a prohibition, not a grant of power: The Constitution does not expressly grant the Federal Government the power to take property for any public purpose whatsoever. Instead, the Government may take property only when necessary and proper to the exercise of an expressly enumerated power. See Kohl v. United States, 91 U. S. 367, 371-372 (1876) (noting Federal Government's power under the Necessary and Proper Clause to take property "needed for forts, armories, and arsenals, for navy-yards and light-houses, for custom-houses, post-offices, and court-houses, and for other public uses").—Justice Clarence Thomas
The concluding clause [of the Fifth Amendment] is, that private property shall not be taken for public use without just compensation. This is an affirmance of a great doctrine established by the common law for the protection of private property. It is founded in natural equity, and is laid down by jurists as a principle of universal law. Indeed, in a free government, almost all other rights would become utterly worthless, if the government possessed an uncontrollable power over the private fortune of every citizen. One of the fundamental objects of every good government must be the due administration of justice; and how vain it would be to speak of such an administration, when all property is subject to the will or caprice of the legislature, and the rulers. --Justice Joseph Story, Commentaries on the Constitution (1784) (Emphasis mine on all quotes above)
On the heels of the decision, John Fund—of the Wall Street Journal—points to a news story from Texas.
After celebrating the Supreme Court's decision yesterday to effectively give local governments carte blanche to seize land for private development, some local officials began quickly moving to use their new unlimited authority. Officials in the beachfront town of Freeport, Texas, announced they would move forward with plans to commandeer property owned by two seafood companies in order to allow the construction of a 900-slip private marina. Freeport will even be loaning the developers $6 million to finance the project, and if it fails the town won't be getting its money back. What is certain is that the displacement of the two seafood companies will cost scores of jobs.
The Supreme Court's decision, by a narrow majority with Justice Anthony Kennedy as swing vote, has prompted state Rep. Frank Corte, a Republican from San Antonio, to propose a state constitutional amendment limiting the power to condemn private land for use by other private entities. He says the amendment is now necessary in order to "limit a local governmental entity's power of eminent domain, preventing them from bulldozing residences in favor of private developers." No doubt there will be similar moves in other states as voters wake up to the realization that the Supreme Court has granted revenue-hungry local governments more or less unlimited authority to seize homes and businesses in order to achieve a "higher use" of the property.
It has already begun. Rep. Corte has an interesting idea, but what will happen when his proposed legislation ends up within another case appealed to the Supreme Court. Technically, the decision from yesterday serves as precedent. "Precedent" according to Barron’s Law Dictionary is as follows:
PRECEDENT—a previously decided case which is recognized as authority for the disposition of future cases. At common law, precedents were regarded as the major source of law. A precedent may involve a novel question of common law or it may involve an interpretation of a statute. In either event, to the extent that future cases rely upon it or distinguish it from themselves without disapproving of it, the case will serve as a precedent for future cases under the doctrine of stare decisis.
In other words, due to the precedent set in this case, it will make it increasingly difficult to get the Court to readdress this sort of a case, and it can simply point to this case to strike down State legislation designed to curtail the local governments from exercising their new-found powers.
I agree with Thomas. This case was a cluster-f**k. Property owners have a right to fear the government now, more than they ever have. In the name of "life, liberty, and the pursuit of tax revenues" we can lose our homes, and undeveloped property we own. And it can be done for virtually any reason. It matters not. "Public use" has given way to a broader interpretation (an improper one, at that) of "public good". "Public good" is nowhere within the Constitution. "Public use" is. In the case in question, where is the "public use" that Pfizer and the city of New London claim will be there? As far as I can find, there is none. It is literally as George Will states:
"The question answered yesterday was: Can government profit by seizing the property of people of modest means and giving it to wealthy people who can pay more taxes than can be extracted from the original owners? The court answered yes... During oral arguments in February, Justice Antonin Scalia distilled the essence of New London's brazen claim: 'You can take from A and give to B if B pays more taxes?... That is the logic of the opinion written by Justice John Paul Stevens and joined by justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer."
George Will, and Justice Scalia are correct. However, it is anything but "logical". It is illogical, and worse, under our Constitution, it is illegal. This decision was so jurisprudentially inept that even the 2000 plus words I have typed cannot begin to explain it. The best explanation I can give is that for reasons relating to revenues alone—an increase in the State’s coffers—the government can now take your home.
In my opinion, the Founding Fathers are rolling over in their graves over this decision. And Tom DeLay’s warning to judges is looking better and better.
The Bunny ;)
Yesterday, I told Thomas that he could handle the ignorance of the Supreme Court in their decision of Kelo v. New London, Connecticut. It is not that I did not want to put my thoughts in on it, but I preferred to have a sharper legal mind address it to begin with. Now that I have had a chance to review the decision, and see what people are saying regarding the decision, I can only assume one thing.
The millions of people in this nation that disagree with the five justices that decided to strip the property rights of America away know more than they do.
America was founded for two very important reasons. First, we wanted our right to practice our religion to be free; that is without interference from the government. We also did not want the government dictating what religion we should participate in, as it was in England. Second, we wanted the right tow own property without the fear of the government seizing it. Yesterday’s incompetent decision took one of those rights we wanted away.
Cox and Forkum is a site for political cartoons, and minor blogging. Today’s cartoon hits the nail on the head. Further, Justices O’Connor and Thomas emphasized the stupidity of the five justices they dissented against.
http://www.coxandforkum.com/archives/000610.html
Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property--and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.—Justice Sandra Day O’Connor
The Fifth Amendment to the Constitution, made applicable to the States by the Fourteenth Amendment, provides that "private property [shall not] be taken for public use, without just compensation." When interpreting the Constitution, we begin with the unremarkable presumption that every word in the document has independent meaning, "that no word was unnecessarily used, or needlessly added." Wright v. United States, 302 U. S. 583, 588 (1938). In keeping with that presumption, we have read the Fifth Amendment's language to impose two distinct conditions on the exercise of eminent domain: "the taking must be for a 'public use' and 'just compensation' must be paid to the owner." Brown v. Legal Foundation of Wash., 538 U. S. 216, 231-232 (2003).
These two limitations serve to protect "the security of Property," which Alexander Hamilton described to the Philadelphia Convention as one of the "great obj[ects] of Gov[ernment]." 1 Records of the Federal Convention of 1787, p. 302 (M. Farrand ed. 1934). Together they ensure stable property ownership by providing safeguards against excessive, unpredictable, or unfair use of the government's eminent domain power--particularly against those owners who, for whatever reasons, may be unable to protect themselves in the political process against the majority's will.—Justice Sandra Day O’Connor
While the Takings Clause presupposes that government can take private property without the owner's consent, the just compensation requirement spreads the cost of condemnations and thus "prevents the public from loading upon one individual more than his just share of the burdens of government." Monongahela Nav. Co. v. United States, 148 U. S. 312, 325 (1893); see also Armstrong v. United States, 364 U. S. 40, 49 (1960). The public use requirement, in turn, imposes a more basic limitation, circumscribing the very scope of the eminent domain power: Government may compel an individual to forfeit her property for the public's use, but not for the benefit of another private person. This requirement promotes fairness as well as security. Cf. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 336 (2002) ("The concepts of 'fairness and justice' ... underlie the Takings Clause").—Justice Sandra Day O’Connor
Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. Our cases have strayed from the Clause's original meaning, and I would reconsider them.—Justice Clarence Thomas
Though one component of the protection provided by the Takings Clause is that the government can take private property only if it provides "just compensation" for the taking, the Takings Clause also prohibits the government from taking property except "for public use." Were it otherwise, the Takings Clause would either be meaningless or empty. If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power--for public or private uses--then it would be surplusage. –Justice Clarence Thomas
The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever. At the time of the founding, dictionaries primarily defined the noun "use" as "[t]he act of employing any thing to any purpose." 2 S. Johnson, A Dictionary of the English Language 2194 (4th ed. 1773) (hereinafter Johnson). The term "use," moreover, "is from the Latin utor, which means 'to use, make use of, avail one's self of, employ, apply, enjoy, etc." J. Lewis, Law of Eminent Domain §165, p. 224, n. 4 (1888) (hereinafter Lewis). When the government takes property and gives it to a private individual, and the public has no right to use the property, it strains language to say that the public is "employing" the property, regardless of the incidental benefits that might accrue to the public from the private use. The term "public use," then, means that either the government or its citizens as a whole must actually "employ" the taken property. See id., at 223 (reviewing founding-era dictionaries).—Justice Clarence Thomas
Granted, another sense of the word "use" was broader in meaning, extending to "[c]onvenience" or "help," or "[q]ualities that make a thing proper for any purpose." 2 Johnson 2194. Nevertheless, read in context, the term "public use" possesses the narrower meaning. Elsewhere, the Constitution twice employs the word "use," both times in its narrower sense. Claeys, Public-Use Limitations and Natural Property Rights, 2004 Mich. St. L. Rev. 877, 897 (hereinafter Public Use Limitations). Article 1, §10 provides that "the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States," meaning the Treasury itself will control the taxes, not use it to any beneficial end. And Article I, §8 grants Congress power "[t]o raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years." Here again, "use" means "employed to raise and support Armies," not anything directed to achieving any military end. The same word in the Public Use Clause should be interpreted to have the same meaning.—Justice Clarence Thomas
The public purpose interpretation of the Public Use Clause also unnecessarily duplicates a similar inquiry required by the Necessary and Proper Clause. The Takings Clause is a prohibition, not a grant of power: The Constitution does not expressly grant the Federal Government the power to take property for any public purpose whatsoever. Instead, the Government may take property only when necessary and proper to the exercise of an expressly enumerated power. See Kohl v. United States, 91 U. S. 367, 371-372 (1876) (noting Federal Government's power under the Necessary and Proper Clause to take property "needed for forts, armories, and arsenals, for navy-yards and light-houses, for custom-houses, post-offices, and court-houses, and for other public uses").—Justice Clarence Thomas
The concluding clause [of the Fifth Amendment] is, that private property shall not be taken for public use without just compensation. This is an affirmance of a great doctrine established by the common law for the protection of private property. It is founded in natural equity, and is laid down by jurists as a principle of universal law. Indeed, in a free government, almost all other rights would become utterly worthless, if the government possessed an uncontrollable power over the private fortune of every citizen. One of the fundamental objects of every good government must be the due administration of justice; and how vain it would be to speak of such an administration, when all property is subject to the will or caprice of the legislature, and the rulers. --Justice Joseph Story, Commentaries on the Constitution (1784) (Emphasis mine on all quotes above)
On the heels of the decision, John Fund—of the Wall Street Journal—points to a news story from Texas.
After celebrating the Supreme Court's decision yesterday to effectively give local governments carte blanche to seize land for private development, some local officials began quickly moving to use their new unlimited authority. Officials in the beachfront town of Freeport, Texas, announced they would move forward with plans to commandeer property owned by two seafood companies in order to allow the construction of a 900-slip private marina. Freeport will even be loaning the developers $6 million to finance the project, and if it fails the town won't be getting its money back. What is certain is that the displacement of the two seafood companies will cost scores of jobs.
The Supreme Court's decision, by a narrow majority with Justice Anthony Kennedy as swing vote, has prompted state Rep. Frank Corte, a Republican from San Antonio, to propose a state constitutional amendment limiting the power to condemn private land for use by other private entities. He says the amendment is now necessary in order to "limit a local governmental entity's power of eminent domain, preventing them from bulldozing residences in favor of private developers." No doubt there will be similar moves in other states as voters wake up to the realization that the Supreme Court has granted revenue-hungry local governments more or less unlimited authority to seize homes and businesses in order to achieve a "higher use" of the property.
It has already begun. Rep. Corte has an interesting idea, but what will happen when his proposed legislation ends up within another case appealed to the Supreme Court. Technically, the decision from yesterday serves as precedent. "Precedent" according to Barron’s Law Dictionary is as follows:
PRECEDENT—a previously decided case which is recognized as authority for the disposition of future cases. At common law, precedents were regarded as the major source of law. A precedent may involve a novel question of common law or it may involve an interpretation of a statute. In either event, to the extent that future cases rely upon it or distinguish it from themselves without disapproving of it, the case will serve as a precedent for future cases under the doctrine of stare decisis.
In other words, due to the precedent set in this case, it will make it increasingly difficult to get the Court to readdress this sort of a case, and it can simply point to this case to strike down State legislation designed to curtail the local governments from exercising their new-found powers.
I agree with Thomas. This case was a cluster-f**k. Property owners have a right to fear the government now, more than they ever have. In the name of "life, liberty, and the pursuit of tax revenues" we can lose our homes, and undeveloped property we own. And it can be done for virtually any reason. It matters not. "Public use" has given way to a broader interpretation (an improper one, at that) of "public good". "Public good" is nowhere within the Constitution. "Public use" is. In the case in question, where is the "public use" that Pfizer and the city of New London claim will be there? As far as I can find, there is none. It is literally as George Will states:
"The question answered yesterday was: Can government profit by seizing the property of people of modest means and giving it to wealthy people who can pay more taxes than can be extracted from the original owners? The court answered yes... During oral arguments in February, Justice Antonin Scalia distilled the essence of New London's brazen claim: 'You can take from A and give to B if B pays more taxes?... That is the logic of the opinion written by Justice John Paul Stevens and joined by justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer."
George Will, and Justice Scalia are correct. However, it is anything but "logical". It is illogical, and worse, under our Constitution, it is illegal. This decision was so jurisprudentially inept that even the 2000 plus words I have typed cannot begin to explain it. The best explanation I can give is that for reasons relating to revenues alone—an increase in the State’s coffers—the government can now take your home.
In my opinion, the Founding Fathers are rolling over in their graves over this decision. And Tom DeLay’s warning to judges is looking better and better.
The Bunny ;)
posted by Syd And Vaughn | 12:35 PM
3 Comments:
Bunny,
And you say you wanted a sharper mind to take this issue on yesterday? Not to say that "Publius" is not of an adroit legal mind because he is. And his post hit the mark. However, yours blew up the target completely.
You cited the serious contentions made by the dissenters, and you pointed out that on the decision made yesterday, the ball is already rolling in at least one case, and I am aware of another one--I believe in Washington State--where a local government is attempting to do likewise.
The five moonbats on the high court that handed down this ruling gave a green light to the governments to take the one thing that separates us from being free and a slave; without property, there is no distinction between either idea, and especially not forthcoming from the government.
Justice Thomas was right to point the reasons of the past as to why the Takings Clause was utilized. His definition of what could be construed as "for public use" being twisted into "for the public good". To take property for necessary things such as roads, military fortifications, schools, etc., there is a "necessary" use for it. But this doesn't revolve around that.
This decision relies solely on money. Our Supreme Court (Oyez! Oyez! God SAVE this Honorable Court) has sold us out to the states--to the government collective--for the almighty profit.
We are a free-market, capitalist system, and I'm all for turning profits. But I cannot condone it when we have stripped away the rights of the citizen to own and maintain their own private property. Personally, in my humble opinion, HOAs are no different as they dictate what is right and wrong for their neighborhoods.
Personally, I'm sick of the people that think they can tell us what we can and can't do with what we own.
And I'm equally shocked and agitated that the Court would have come to this brain-dead decision.
Mistress Pundit
Excellent blog by a first rate blogger. Well done. The five justices amended our Constitution. They did irreparable harm to our right to private and to all of our others rights from which they flow. The decision is clear that revenue trumps private property. Your home is no long your castle. Rawrite
First to Raw,
You're correct, Old Friend; they amended the Constitution n the worst case of judicial fiatism I have ever witnessed. I was 1 years old when Roe v. Wade was accepted, so I never understood the impact of the case until I was much older.
This decision blows Roe v. Wade away; the government may seize your property for almost any reason, and there's no "check" against such an intrusion. Our only "check" against such a move is an impeachment of the justices. However, as Marcie appropriately addressed, precedent has been set; removal of the jurists won't solve the problem.
To Mistress Pundit:
I thank you for your kind words regarding my "adroit legal mind", but I was only tossing out my two-cents on this. "Bunny" researched her butt off on this case, which is why hers was, IMHO, better than mine.
She sat back and worked her way through what people were saying, she read and reread the decision, took notes, researched the cases cited, and came to her own conclusions; ones that I share, and endorse.
To any further reader and commenter: If you think your home is safe, think again. There need not be a mitigating circumstance--such as dilapidation or condemned buildings to warrant a government seizure of the property. They may seize "good" property for their own development for more lucrative means.
The ability for a person to buy, own, and upkeep a home has given way to State and Federal government officials seizing it for revenues.
Thomas
Post a Comment
<< Home