Posted on 07/06/2005 10:13:33 AM PDT by Torie
As much as I support states' rights, if states and municipalities violate individual rights that are expressly stated in the Bill of Rights, then Congress certainly has a right to define that by statute.
Neither party has expressed any interest in challenging this decision. Where shall the 2/3rds be found in either house of Congress to propose a Constitutional amendment and actually pass it?
The house passed a resolution something like 385 to 35 (with several members simply voting present) condemning the decision in very strong terms. That sounds like bipartisan interest in challenging the decision. Several states already have laws on the books prohibiting local govt from using eminent domain for "economic development" purposes, and there is a great deal of public support for more states adopting such laws in light of the decision.
Kelo, unfortunately, reinforces the 'redistribution of wealth' philosophy which has prevailed in American government (among legislative, executive and judicial branches) from the 1930's to now.
America's Founders, from Gov. Bradford in the 1600's, through the Framers of the Constitution, soundly rejected that philosophy. Their writings are replete with strong statements outlining the dangers to liberty once such an idea would be a society's prevailing law.
Recent decisions on freedom of religious expression and citizens' private property rights are examples of decisions that threaten freedom and harbor the seeds of a return to tyranny.
"Our Ageless Constitution," Bicentennial Edition (1987), outlined principles underlying the Constitution of the United States, one of which it titled, "Private Property Rights." Another section of this Bicentennial Volume, laid out by outstanding constitutional scholars, dealt with the 200-year history of court and legislative decisions that already had seriously eroded those principles.
One essay is reprinted below, with permission:
"Private Property Rights -- A basic Premise Of America's Constitution"
"Tired of having the fruits of their labors confiscated by an overpowering British government, America's Founders declared themselves free and independent.
"Most American schoolchildren can recite their claim that '. all men are endowed by their Creator with certain unalienable rights ... to life, liberty, and the pursuit of happiness.' Less familiar, however, are these lines from their Declaration of Independence:
"'He ( King George III ) has erected a multitude of new offices, and sent hither swarms of officers to harrass our people, and eat out their substance .... He has combined with others to subject us, ... imposing taxes on us without our consent.'
"What, then, did the Founders consider to be the real cornerstone of man's liberty and happiness? On what basic premise did they devise their Constitution? Let them speak for themselves:
"John Adams: 'The moment the idea is admitted into society that property is not as sacred as the laws of God ... anarchy and tyranny commence. PROPERTY MUST BE SECURED OR LIBERTY CANNOT EXIST.'
"James Madison: 'Government is instituted to protect property of every sort .... This being the end of government, that is NOT a just government,... nor is property secure under it, where the property which a man has ... is violated by arbitrary seizures of one class of citizens for the service of the rest.'
"Their guiding principle was that people come together to form governments in order to SECURE their rights to property - not to create an entity which will, itself, 'take from the mouths of labor the bread it has earned.' What was wrong for individual citizens to do to one another, they believed, was equally wrong for government to do to them.
"The right to own property and to keep the rewards of individual labor opened the floodgates of progress for the benefit of the entire human race. Millions have fled other countries to participate in the Miracle of America."
End of quoted material. Underlining emphasis added
As homes and schools have failed to study, understand, teach, and pass on the principles which produced a constitutionally limited power in the various levels of government, we see the constitution's protections eroded.
The 'redistribution of wealth' advocates of the past several decades, some of whom were dedicated to other philosophies, but many of whom were well-intentioned, but ignorant of founding ideas, have provided a gate by which tyranny and oppression threaten liberty. This Court's decision simply has reinforced that oppresive idea.
America's Founders understood the human tendency to abuse power, and they meant for both elected and unelected persons with delegated power to be bound down by the "chains" (Jefferson) of the constitution. It is up to our courts, especially our Supreme Court, to heed Jefferson's admonition: "On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it conform to the probable one in which it was passed."
As late as 1968, Justice Hugo Black's words constitute another wise warning:
"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' view of fairness, reasonableness, or justice. I have no fear of constitutional amendments properly adopted, but I do fear the rewriting of the Constitution by judges under the guise of interpretation."
Ideas have consequences (Weaver)! The Founders ideas, summarized in the foregoing quotations, produced liberty and plenty: the idea exemplified by the Court's recent ruling allowing "arbitrary (property) seizures of one class of citizens for the service of the rest" is, as Madison asserted, not the idea of a JUST government. Its consequences are, as Adams declared, "anarchy and tyranny."
Perhaps decisions that weakened public acknowledgement of the "sacredness" of the "Laws of God" contributed to the Court's willingness to intrude on property rights.
Private property and free speech -- for thee and nae for yee.
Which is why there are provisions for amending the constitution. Every word of the constitution has to be given meaning or the document is nothing more than a Rorschak test for the Justices interpeting it.
The only thing "correct" derived from Kelo was to uambiguously unmask an activist court with a collectivist mentality. The Soviet collectivist experiment fell, many despotic dictators have fallen, and this court may well fall if this kind of "judicial temperment" continues to be demonstrated. One sidebar issue which will be positive is that this issue is so easy to understand without exhaustive explaination. It is instinctively repugnant to the very idea of the freedoms listed in the 5th amendment. This will help get several judges confirmed if the conservatives will organize their thoughts during the confirmation process.
The nature of property and of right is still in debate in philosophic circles, and in legal circles is adjusted and refined with every decision.
Bump, good post.
"As much as I support states' rights, if states and municipalities violate individual rights that are expressly stated in the Bill of Rights, then Congress certainly has a right to define that by statute."
Congress certainly has that right unless the Supreme Court says that it doesn't.
This is the problem that we keep circling back to.
Example: the US Constitution says that Congress has the power to set the jurisdiction of the federal courts. But just let the Congress try to deprive the federal courts of the power of constitutional review of anything, and the Supreme Court will strike down the act of Congress limiting the jurisdiction of the federal courts when it comes to constitutionality as itself being a unconstitutional limitation. Whichever way you go, if you follow American precedent, the result is entirely predictable: after much huffing and puffing of the political classes, the Supreme Court of the United States will rule, and that decision will be final. When the Supreme Court created for itself out of wholecloth the power of judicial review in 1803, it was not challenged by President Jefferson or the Congress. And, other than Lincoln, and one incident with Jackson, it has not been directly challenged since then. One can talk about passing laws to limit the court, but it is not even on the agenda, nor would any such law pass absent use of the nuclear option on straight legislation in the US Senate: a position even the Republicans have not dared propose.
"The house passed a resolution something like 385 to 35 (with several members simply voting present) condemning the decision in very strong terms."
And the US Senate...?
Given the existing precedents, Kelo was correctly decided.
I think so, too. I also think this issue is ripe for a "correction". I usually hate the idea of correcting Supreme Court travesties with amendments to the constitution, but this is such a case.
Yes, but the Constitution is the standard not increasingly deviating precedents.
The Rubricon....how appropo....the 5 Casesars have crossed it. Now the question is "Can we push them back?" E' tu?
Guess the Magna Charter was wrong too huh?
No, just good citizens doing their duty (and you can certainly look at THAT more than one way, depending upon the degree to which your views are statist or individualist).
This notion of stare decisis which Biden is anally fixated upon seems to have had a substantial run with few setbacks. Like Levin said, these are 9 people who won the lottery and are no smarter, nor do they possses any more insite than the rest of the population. Stare decisis seems to mean the constitution is valid, except for that which has been rewritten by sitting judges. Like Harry Blackmun said, "There is no limit to how much we can rewrite the constitution".
"This was an egregious error by the SCOTUS regardless of whatever kind of logical gymnastics the author might contort himself to determine otherwise."
This was no error. The majority ruled the way they did because it was consistent with what they want, not because they believe it was in accordance with the Constitution.
Just because they are getting the expansion of government power that they desire, does not change the fact that they erred. The got the answer WRONG, regardless of whether or not they like it better wrong. So in that sense, it was definitely an error, even if it was a deliberate error on the part of the 5.
I always hate it when we feel we need an amendment to return the constitution (as unlawfully amended by the courts) to the original meaning as stated in a previous amendment. It might be humorous though to see in the amendment process an amendment which simply reads:
Amendment 28: The plain wording of Amendment 5 means exactly what it says, i.e. "public use" means "public use" rather than "private use that has some ancillary public benefit".
How in the WORLD did they ever do it, pre-Kelo? /sarcasm
Torie, if you're 'right of center', your time on FR has moved you greatly across the political spectrum.
But your support of Kelo could call that into question...
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