"Liberal" Justices Turn Back Clock...To the Year 1215

Sierra Times ^ | June 25, 2005 | Thomas M. Sipos

[BringBackMyHUAC]

"Liberal" Justices Turn Back Clock...To the Year 1215

Thomas M. Sipos

You no longer own your own home or have the right to buy one. This is due to an amendment to the U.S. Constitution, approved June 23. No, this amendment didn't pass both houses of Congress and three fourths of the state legislatures, in what is whimsically termed "the amendment process." Rather, our Constitution was amended in the usual way, by judicial fiat. In essence, five Supreme Court justices -- John Stevens, David Souter, Ruth Ginsburg, Stephen Breyer, Anthony Kennedy -- voted that you no longer own your own home. That's the result of Kelo v. City of New London, in which, according to dissenting Justice Clarence Thomas: "The court has erased the Public Use Clause from our Constitution."

That's right. A whole Constitutional clause, a clause that protected your property from arbitrary government expropriation, erased by five justices. At least with flag burning, the issue is undergoing the official amendment process.

But to understand Kelo, let me first give you some historical background. Back in olden days, all land was owned by a "sovereign," that is, a king, tsar, pope, or emperor. This sovereign leased his land to vassals, i.e., lords, barons, knights, and other titled nobility. Vassals could use the land so long as they served the sovereign. (See the bargain struck in the movie, Excalibur.) Because the sovereign owned the land, he could always repossess it.

In 1215, the English nobles decided this was a bad deal. They asked King John to sign Magna Carta, restricting his ability to reclaim the land. King John agreed, mostly because the nobles had brought plenty of swords. Peasants still owned no land, but the times, they were a changin'.

A big change occurred in 1776, when Americans decided that "the people" were sovereign, owning the land and the powers to govern it and themselves. In 1789, they delegated some of those powers to the government via the Constitution, while also restricting those powers through the ten Bill of Rights. For instance, the Fifth Amendment says: "No person shall be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Thus, "the people," being sovereign and owning all the land, can, through their elected representatives, take your property, but only if (1) the taking is for a "public use" (traditionally, a road, school, or other public project), and (2) you're paid "just compensation" (theoretically, fair market value).

With Kelo, according to Justice Thomas, the Supreme Court "erased" the Public Use Clause. Now government can take your property for any reason at all.

In Kelo, the city of New London, CT, had condemned 15 homes so that private developers may build offices, a hotel, pricier homes, and a pedestrian path along the Thames River. The homeowners sued the city, trying to save their homes by arguing that private development was not a public use. The city said it was, because offices and pricier homes would generate more tax revenue.

The Supreme Court agreed with the city.

Justice Stevens wrote: "Promoting economic development is a traditional and long-accepted function of government. ... [T]here is no basis for exempting economic development from our traditionally broad understanding of public purpose."

But if private use is a public use, and public use is a public use, then everything is a public use -- and the Public Use Clause has no meaning. As Justice O'Connor said in her dissent: "Who among us can say she already makes the most productive or attractive use of her property? ... 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. ... Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

Is she right? With the Public Use Clause erased, what will prevent the state from replacing any home or business with a "nicer" business? Nothing but the good intentions of back room politicians. Seriously. According to Justice Stevens, the very cities and states condemning the land can best determine "local public needs," and their judgements are "entitled to our deference."

That's like letting the accused decide whether he's guilty.

The result is that politically-connected developers can now use state muscle to force those of modest income to sell their homes at below market rates, while wealthy homeowners are protected by their own political clout. (I say "at below market rates," because if developers paid homeowners their asking price -- the true definition of "market rate" -- there'd be no need to condemn land, as every owner has his price). As Justice O'Connor put it: "The government now has license to transfer property from those with fewer resources to those with more."

So it seems the times are a changin' again. Only now we're going backwards, to about 1215, when only nobles could protect their land from the king, the peasants at the mercy of both. And ironically, it's the more "liberal" justices who are turning back the clock.

[Mark in the Old South]

States amend their constitutions like I change underwear. Most of the time the public never notices unless it is a hot button issue such as same sex marriage. Despite the change now the fact is the Constitution is long gone and most even now will hardly notice. The point is a state level issue does not help a poor or middle class homeowner in Conn. The present government is guilty of far greater crimes than King George III ever though of. GWB will do nothing unless forced to do so.

[Judge Roy]

Yea I think I saw in africa where they just bulldosed hundreds of thousands of their people out of their homes.

[popdonnelly]

I wonder how the Democrats like their favorite Justices voting away their property rights in their homes? How about we get a few more lame liberals on the Court, eh? And dear Democrats, no, you can't screen our Supreme Court nominees.

[calex59]

We need a viable third party in this country, a real conservative party that believes in conservative values, I am sure we could take most of the base from the republicans and since the Dems are dead for all practical purposes, they just don't know it yet, we would get a lot of them too.

Appeal to the blacks on their values, appeal to ALL christians and other religions, freedom of religion, any religion that isn't violent in nature, cut taxes, eleminate all income taxes and property taxes, not even a flat income tax. Income taxes are evil and make criminals of law abiding citizens. Generally restore the constitution to what it was meant to be, did I mention the right to keep and bear arms without restrictions for all law abiding citizens? This is what we need and the republicans are the closests we can get at the moment but are not there because of the Rinos and moderates in their ranks.

[calex59]

Please forgive the spelling errors in my last post. Thanks.

[Publius6961]

They asked King John to sign Magna Carta, restricting his ability to reclaim the land. King John agreed, mostly because the nobles had brought plenty of swords.

The remarkable thing is that, here we are, almost 800 years later, and there are millions of adult Americans, who apparently don't know history back past their own birthdate, who absolutely believe, as an act of faith, that the Second Amendment is symbolic.

"That rifle on the wall of the labourer's cottage or working class flat is the symbol of democracy. It is our job to see that it stays there." -- GEORGE ORWELL

[calex59]

This is true but I think we will see a swelling of anger the likes of which have been seldom seen before. The DU is against this! Think about that. When have we ever agreed with anything they thought or they agreed with us? This is a day of reckoning and it is coming up fast for our judicial and legislative branches that ignore it.

[calex59]

The remarkable thing is that, here we are, almost 800 years later, and there are millions of adult Americans, who apparently don't know history back past their own birthdate, who absolutely believe, as an act of faith, that the Second Amendment is symbolic.?

I will die to keep all TEN amendments of the bill or rights in good working order and I do not think I am the only one. However, I do not think we are to that point yet. I think this ruling is going to swell up and explode in the judiciaries faces. DU is against this. Have any of you been over there and read their responses, they can't believe their wonderful socialist judges did this to them. They realize they own property also and it can be taken at the drop of a hat.

[Publius6961]

... and (2) you're paid "just compensation" (theoretically, fair market value).

... because if developers paid homeowners their asking price -- the true definition of "market rate" -- there'd be no need to condemn land, as every owner has his price...

Just compensation has an infinite number of real world definitions. e.g. an owner with a cottage gets an equal area in the new residential development, with the identical assessment, for tax purposes, as the old cottage. If he had water access before, he has water access after... etc.
Even presocratic philosophers would agree on this most fundamental of equity questions.

[SkyPilot]

"We wants it! Give it to us! We wants the precioussssssss!"

[Publius6961]

Returning to the middle ages wouldn't phase them at all.

Perhaps you meant to use the word "faze"?

[Savage Beast]

"Is she right?"

Of course she is.

"ironically, it's the more 'liberal' justices who are turning back the clock."

Don't be ridiculous! There's nothing liberal about these people!

[henderson field]

What is the difference between
Ruth Bader Ginsburg in Washington and
Robert Mugabe in Zimbabwe?
There is no difference.

[nightdriver]

"And ironically, it's the more "liberal" justices who are turning back the clock.

Nothing ironic about it.

"Liberal," in modern parlance has come to mean "..liberated from all norms and absolutes so that the law is whatever the "liberal" individual claims it is (at that moment).

[henderson field]

"Repeal all property taxes"
I wish this could happen. That's the most egregious tax there is.

[Mark in the Old South]

You mean like the ground swell of anger over Roe v Wade. As a small child I remember all the calls for impeachment. 30 years later the only thing we have is 45 million babies dead v one or two abortion doctors. I guess we can take comfort in the fact more babe killing mothers die in "Legal" abortions than died in Illegal back alley abortions.

GWB will do nothing. The Harvard Business School MBA graduate and his friends are all for this. Expect a few words of regret and then nothing just like marriage protection act and stem cell research restrictions. Words, meaningless and empty words meant to placate the masses.

DU is against it, so what? Do you think Soros or Kennedy give a fig what the DU masses thinks? The left is just as happy as Big Business is over this issue. This ruling is the happy marriage of Big Business and Big Government. Every little whim is easier now.

Both Parties are behind this. SCOTUS does nothing without assurances the Congress and the WH will only complain. One or both can make the court back down and it doesn't take the high bar of impeachment. 50% + one in Congress will weaken the court. Possible options beside impeachment:

1. Hearings everyday. Drag them through the mud. Judges have little experience with the hot lights of the media. Keep them preparing for their testimony and out of trouble in the court room. Make it ugly and do not go after the worst first. Grade each judge on a 1-10 scale. Make life hell for the guy at a 7 and the 8-10 will pee themselves. Congress is expert at this, just ask Trent Lott or Tom Delay.

2. Cut budgets and staffing. Make it big the first time and then keep doing it. Cut pensions, cut office supplies, make every dime fenced. Force them to account for every paper clip, tie them up in budgetary red tape. Fund landscaping but be stingy on the electric bill. Make them turn off the AC in the summer and wear a coat under their robes in the winter. Cut cut cut. The Congress has the purse strings and that makes them the powerhouse over the courts. They can use the money for pork projects at home the voters will NEVER punish them for it. If the courts try to get froggy and direct spending from the bench? See option #1 then see option #3 as a response to the judge that dares.

3. Redistricting. Keep everything a disaster for the judges. Create new districts and do away with old ones. The judges sitting on benches that are gone? - oh well, hand them the pink slip, say thanks and goodbye. Together with the budget cuts the courts will be crying like a little girl in one year.

Don't expect even mild versions of any of the above because BOTH PARTIES are okay with this. They are the rich and well connected they have little to fear. You? well you my friend are no body. Face it.

[tomkat]

I share your perspective and your hopes, and only wish I could also share your optimism.

Beginning with FDR, we have allowed a thieving socialist leviathan to seize control of our government(s).

If I thought my death could make an actual difference, I'd go down in flames for the restoration of our nation.

The last time folks tried that, both sides had muskets and cannon.
This time one side has small arms and the other has Apaches.

Given those odds, an effective counter-revolution would have to come from within the system, and until such time as intelligent, everyday patriots with real/productive lives to return to replace the career mandarins, it's not likely to happen.

I'll pray for a renaissance, but won't hold my breath...

[Mark in the Old South]

Re: "I will die to keep all TEN amendments of the bill or rights in good working order and I do not think I am the only one."

What are you a voice from the past are you the ghost from 1973 when Roe v Wade passed without a hitch. There was a lot of talk then as well. When the court found out Congress and the White House would let them kill millions of babies they discovered they could do anything. You lost those rights a long time ago. When you (and myself as well) didn't protect our neighbor's rights (the right to life itself), what makes you think anyone is going to trouble themselves to protect yours now.

[Mark in the Old South]

Property taxes is the oldest form of tax in this country. Because of this tax the right to vote was limited to property owners only. It was just about the first thing changed in the Constitution after it was put into effect.