Confiscating Property - (Walter Williams on SCOTUS Kelo v. New London decision)

Last week's U.S. Supreme Court 5-4 ruling in Kelo v. New London helps explain the socialist attack on President Bush's nominees to the federal bench. First, let's look at the case.

The city government of New London, Conn., has run upon hard times, with residents leaving and its tax base eroding. Private developers offered to build a riverfront hotel, private offices and a health club in the Fort Trumbull neighborhood. But there was a bit of a problem. Owners of 15 homes in the stable middle-class Fort Trumbull neighborhood refused the city's offer to buy their homes, but no sweat. The city turned over its power of eminent domain -- its ability to take private property for public use -- to the New London Development Corporation, a private body, to take the entire neighborhood for private development. The city condemned the homeowners' properties. The homeowners sued and lost in the state court, and last week they lost in the U.S. Supreme Court.

The framers of our Constitution gave us the Fifth Amendment in order to protect us from government property confiscation. The Amendment reads in part: "[N]or shall private property be taken for public use, without just compensation." Which one of those 12 words is difficult to understand? The framers recognized there might be a need for government to acquire private property to build a road, bridge, dam or fort. That is a clear public use that requires just compensation, but is taking one person's private property to make it available for another's private use a public purpose? Justice John Paul Stevens says yes, arguing, "Promoting economic development is a traditional and long-accepted function of government."

Justice Sandra Day O'Connor dissented, saying, "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 given to an owner who will use it in a way that the legislature deems more beneficial to the public." She added that "the words 'for public use' do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power." In other words, state and local officials can now take your home for another private person to use so long as they can manufacture an argument that the latter use is more beneficial to the public.

Let's look at a few examples of how this might play out. You and your neighbor have two-acre lots. Your combined property tax is $10,000. A nursing home proprietor tells city officials that if they condemn your property and sell it to him to build a nursing home, the city would get $30,000 in property taxes. According to last week's U.S. Supreme Court ruling, this plan would be construed as beneficial to the public, and you'd have no recourse. Similarly, an environmental group might descend on public officials to condemn your land and transfer it to the group for a wildlife preserve. Again, a contrived public benefit for which you'd have no recourse.

The Court's decision helps explain the vicious attacks on any judicial nominees who might use framer-intent to interpret the U.S. Constitution. America's socialists want more control over our lives, property and our pocketbooks. They cannot always get their way in the legislature, and the courts represent their only chance. There is nothing complex about those 12 words the framers wrote to protect us from governmental property confiscation. You need a magician to reach the conclusion reached by the Court's majority. I think the socialist attack on judicial nominees who'd use framer-intent in their interpretation of the Constitution might also explain their attack on our Second Amendment "right of the people to keep and bear Arms." Why? Because when they come to take our property, they don't want to risk buckshot in their butts.

Although this thread appears to have run its course, will gladly re-post my response of a few days ago (Thanks for asking. To even be mentioned in the same sentence with the venerable Dr. Williams ends my day on a humbly appreciative note. :)

But first, if you haven’t already done so, please check out this thread. As have many others on this forum, I have been involved in several grassroots movements (to preserve the original intent of the Second Amendment, to attempt to see to it that genuine conservative candidates win primary elections against entrenched Republicans-in-name-only, etc.), but I believe Logan Clements has gone one step further than organizing marches or wearing out shoe leather in an attempt to see to it that poetic justice/just desserts are meted out to our highest ranking judicial tyrants. God bless him!

If you lived on the east coast, I would urge you to sign up to stay at his proposed hotel and visit his Museum to Lost Liberty, both hopefully to be erected on the soon-to-be former location of Justice Souter’s home. (As for the Museum of Lost Liberty, it might be appropriate to model it after one of the Twin Towers, or the Pentagon. Although neither one would be size-sufficient to house the subject’s potential exhibits and literature).

The homes of Justices Stevens, Kennedy, Ginsburg and Breyer also no doubt bring in far less tax revenue than would an upscale shopping mall, a luxury hotel, a five star resort, a private gated community, a country club, etc. Mr. Clements’ entrepreneural vision could surely be extended to their places of residence as well -- if not by Mr. Clements himself (who will no doubt have his hands full in dealing with the Weare, NH township officialdom, building codes, zoning ordinances, etc.), then by another activist, liberty-loving developer or entrepreneur.

If Clements’, or others’, efforts to give the judicial tyrants a taste of what it’s like to be ‘the little guy’ in Amerika 2005 fail, their crusade will at least have served as evidence of the fact that Orwell’s theory that some animals are more equal than others is now even more visibly a part of Amerika’s burgeoning elitist caste system.

Previous post, as promised …

(How did we ever exist before the invention of cut and paste? :)

First, a disclaimer: I am not an attorney, and I have had no training whatsoever in the law. While some may believe that to be a disadvantage in forming an opinion regarding American laws, or the American judicial process, I believe it to be quite the opposite. We laymen have the distinct advantage of being able to look at modern American laws and modern American judicial rulings without having to concern ourselves with political pressures, ludicrous, irrational judicial precedents, absurd legal technicalities, or microscopic small print. In a brain free of such irrelevancies there still remains considerable room for common sense.

I believe the Supreme Court’s ruling in Kelo et al v. City of New London may well represent the most egregious Court ruling of my lifetime. I am a member of the baby boom generation, so my lifetime includes thousands of high court decisions. The only other rulings that even come close to the audacity of this one occurred with the infamous Roe vs. Wade decision in 1973 and the dismembering of the First Amendment when the Court upheld McCain-Feingold in 2003. I suppose the continued future ramifications of all three rulings will reveal which one is more noxious, and I don’t relish witnessing that particular decision making process.

Our Founders embraced, and sought to preserve for us, the economic definition of private property. They based their opinions on common law, and asserted that private property ownership rights existed before government. The only logical alternative to the economic definition is the collectivist definition, in which the state retains actual ownership, and may therefore both regulate and seize property at will.

The Court’s ruling in Kelo/New London affirms a collectivist view of property, which is blatantly unconstitutional.

Common law, upon which our Founders based much of their law/justice beliefs, has a three-pronged foundation: the law of contract, tort liability, and private property. Destroy one of those legs and the entire structure is at risk. English Whig intellectuals (most notably Locke, Gordon and Sydney) provided the common law basis upon which our Founders constructed their vision of American law. They renounced the 'divine right of kings' in deference to the belief that individual rights supercede, and regulate, the power of the state.

Our Founders believed that a government that claims more controls than those empowered to it by property owners is an illegitimate government. They also loathed the European class system and the inherent feudal mindset that it supported regarding land ownership. They believed that, by definition, the sanctity of private individual land ownership was among the two or three most crucial cornerstones of a republican form of government.

As a result, several of the amendments in the Bill of Rights are either directly or indirectly related to the absolute sanctity of individual private property rights.

Those that indirectly relate …

The Third Amendment (regarding soldiers being quartered in a house without the owner’s consent, or as prescribed by law) exhibits an unmistakable belief in the sanctity of a man’s home.

The Ninth Amendment states that ‘the enumerations of certain rights shall not be construed to deny or disparage others retained by the people.’

The Tenth Amendment reads, ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states and the people.’ The ‘powers’ to which our Founders alluded here clearly include private property rights as delineated under common law.

Those that directly relate …

The Fifth Amendment states that no American 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.’

Notice that our Founders were establishing firm parameters by which private property could be seized for public use (the shaky foundation from which the eminent domain monster was born). No doubt it didn’t even occur to them that a republican form of government would ever consider seizing private property for the over-riding purpose of increasing tax revenue, as in Kelo vs. New London.

Nor did it occur to them that government would seize private property in order to provide benefit to the wealthy or the politically connected by depriving the hard-working (yet grossly uninformed) masses of deserved, and earned, benefit.

The Public Use Clause has found itself distorted beyond recognition, and certainly beyond its providing any more value to a representative republic.

The portion of the Fifth Amendment that addresses private property rights is again reaffirmed in the Fourteenth Amendment.

In America 2005, the state’s desire to usurp power from the individual sometimes surpasses its ability to tax (at least to the degree that the citizens will rebel). So, when increased taxation is not an option, congress, with the co-operation of activist courts, decides instead to subvert the rights of private property owners. This covert method of increasing revenue (and consequently increasing power) has been rarely, if ever, more apparent than in Kelo vs. New London.

In America 2005, the Constitution’s reverence for the sanctity of private property rights has taken a back seat to the leftist belief that societal and environmental reforms must take precedence. Justice Thomas sorrowfully and sarcastically calls this left-leaning justification the ‘Diverse and Always Evolving Needs of Society’. The fact that leftists believe the Constitution to be a ‘living document’ has rarely been more painfully exhibited than in this week’s Supreme Court travesty.

Neither the Constitution, nor the rule of law, can long survive the scourge of legislative and judicial systems gone awry (only by Constitutional measure; not by collectivist theory). That menace, combined with a passive, uninformed citizenry, is a certain invitation to entrenched tyranny, from which there will be little or no opportunity to reclaim liberties that we have for so long taken for granted.

Legislatures making laws to benefit the government and business elite … and courts upholding such elitist laws … it doesn’t even remotely resemble the America our Founders established, or the America I want to call home. The fact that an American family can suffer the heartbreak and indignity of being forced out of their home by their government, because a land developer or a large corporation has declared that it has better use for the land, represents an enormous, unprecedented downward step in the failure of the American experiment in self-governance.

When I was studying World War II in high school I remember learning the definition of fascism. One of the glaring tenets included the idea that fascist governments may ‘allow’ individuals to ‘technically own’ property, but government makes most of the decisions regarding the use of that property. American bureaucratic zoning, environmental, anti-discrimination, and other regulations have already mirrored that integral aspect of fascism for decades.

Government passing legislation that dictates the use of private property is bad enough. Government passing legislation that enables it to seize private property under guidelines that reek of power-hunger and the realization of a socialist/collectivist agenda is prophetic. Barring a revolution, it predicts the demise of the most moral, and most prosperous individual-liberty-based civilization in the history of mankind.

~ joanie

The NYTimes didn't wait for the Kelo decision:

http://www.cnsnews.com/ViewNation.asp?Page=%5CNation%5Carchive%5C200210%5CNAT20021018b.html

Government, NY Times Join Forces to Evict Business Owners
By Jeff McKay
CNSNews.com Correspondent
October 18, 2002

(CNSNews.com) - A New York State government agency is forcing a group of business owners to leave their property by condemning it. That clears the way for a new skyscraper to go up - an office building that will house the New York Times.

Critics complain city taxpayers will foot part of the bill.

In a deal struck by the Empire State Development Corporation, a group of Midtown Manhattan buildings - just a block from Times Square - will be torn down. The land will then be leased to the New York Times, which plans to build a million-plus square foot office tower that will also include leased commercial space.

Some say the deal gives the land to the New York Times for "pennies on the dollar."

In a New York Times story dated October 25, 2001, the New York Times called the now-condemned block, "a shabby blend of sex shops, prostitution, loitering, and drug dealing." The report was entitled, "Blight to Some is Home to Others."

But others disagree. "In reality, the ESD (Empire State Development) is condemning an entire block of thriving small businesses along 8th Avenue between 40th and 41st Streets so that the Times can erect a new building," said Manhattan Libertarian Party spokesman Jim Lesczynski.

"This will be at the expense of property owners, tenants and taxpayers. This New York Times plan is simply a case of the government helping the politically powerful at the expense of the less fortunate," according to Lesczynski.

Property owners were informed by letter that their buildings would be condemned and that they would have to move. They were also notified that since the state was taking over the condemned property, those who currently leased space in the buildings would have to pay their rent to the state, leaving some building owners paying both a mortgage and rent.

A check on one of the buildings in question, a 16-story structure owned by Sidney Orbach and his family, shows that two of his 16 floors are currently leased by fashion designer Donna Karan and one of those floors is used as a gallery and showroom.

Orbach's building had a 100-percent occupancy rate before the state condemned the property. He claims that over the years, he's had to turn away companies and individuals who wanted leases in his building.

Property owners are also outraged that they had no say in what is happening to their businesses. They feel they are pawns, pitted against a government machine that plays favorites.

"I was never asked if I wanted to sell," said Orbach.

Orbach said a lot half the size of the one the New York Times wants - and located in the same area - recently sold for approximately $180 per square foot. The deal the newspaper struck is expected to cost it only $60 per square foot, well below market value for Midtown Manhattan and the Times Square district.

Current real estate market values of office and commercial space in the area range from $100 to $40 per square foot.

"The UDC is offering this deal to the Times at 10 to 15 cents on the dollar," said Orbach. "The deal has nothing to do with dilapidated buildings or urban renewal. This has everything to do with the government and the powerful New York Times."

"Corporate welfare and eminent domain abuses like that practiced by The New York Times threatens the rights and welfare of all New Yorkers," said Libertarian gubernatorial candidate Scott Jeffrey.

A spokesman for the New York Times declined to comment, citing the ongoing legal matter.

According to court records, the state and city signed a deal with the Times and Forest City Ratner Companies, which included a 99-year lease totaling $85.6 million-well below market value, according to experts. The deal also includes $26 million in tax cuts for the Times.

In addition, if a court sets the condemnation price higher than $85.6 million, the developers would have to come up with the extra money. However, the Times and Forest City will be able to deduct the extra cost, meaning taxpayers will cover all costs above $85.6 million.

Forest City Ratner Companies is headed by Bruce Ratner, a well-known fundraiser for both former Mayor Rudy Giuliani and former President Bill Clinton.

It was Ratner who earlier this year spearheaded a campaign to produce a "politically correct" statue, replacing two of the three white firefighters captured in a world-famous photo of the flag raising at Ground Zero with a more diverse grouping. The move outraged both firefighters and the public and was later scrapped.

The Empire State Development describes itself as "dedicated to creating jobs and encouraging economic prosperity by strengthening and supporting New York State businesses." Charles Gargano, who was appointed to this post by Gov. George Pataki, heads this state office.

The tax breaks and anticipated subsidies to be granted to the New York Times are expected to cost taxpayers nearly $100 million.

In 1994, the city of New York gave the Times a $29 million tax break to build a new printing plant in Queens, rather than relocate to New Jersey.

The proposed plans for the New York Times skyscraper includes 52 floors and well over 1.3 million square feet of space, of which only 900,000 square feet will be used by the Times. The rest of the space - mostly the skyscraper's upper floors - will be leased.

This, in turn, will make the Times the landlord of over 400,000 square feet of prime real estate.

"It's so abusive -- the tactics they are using. They are pressuring tenants to move out," Orbach stated. "When I came to America, I could never believe that this could happen here. To me, this is very reminiscent of Nazi Germany."

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.