Libertarian ping.To be added or removed from my ping list freepmail me or post a message here
Posted on 08/18/2005 2:13:44 AM PDT by alessandrofiaschi
While the ink has hardly set on the U.S. Supreme Court's controversial 5-4 ruling in the Kelo vs. New London case, a move is underway to urge Congress to pass a constitutional amendment affording greater protection to property owners from unwanted government intervention for the promotion of economic development. Rep. David Floyd, R-Bardstown, has signed on for a resolution that has made its rounds among Kentucky House minority members.
Have the Supremes finally flipped their judicial wigs? Here is some background as well as some key language, from the majority as well as the dissent sides:
The Connecticut Supreme Court's ruling had sided with the City of New London in its approval of a development plan that was "projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas."
The city's development agent, the non-profit New London Development Corporation, had purchased property (a majority of the 90 acres involved and about 100 private residences) from willing sellers and proposed to use eminent domain, at the order of the city, to acquire the remainder of the property from unwilling owners (nine owners who had 15 properties) in exchange for "just compensation." The real question was whether the city's proposed disposition of the property qualified as a "public use" within the meaning of the takings clause of the Fifth Amendment to the Constitution.
To paint the picture: New London had not had many things going for it for a long time and matters had only gotten worse. Decades of economic decline led a state agency 15 years ago to designate the city as a "distressed municipality." In 1996, the federal government closed the Naval Undersea Warfare Center, in the Fort Trumbull area of the city that had employed 1,500 people. That caused an exodus of people; with the population at its lowest level since 1920, and unemployment nearly double the state average.
But hope does spring eternal. The state authorized bonds totaling more than $15 million to support development after the naval closure. Then, pharmaceutical giant Pfizer announced it would be building a $300 million research facility. That was to be the catalyst for further new development, to include a riverfront hotel, shops and restaurants, a pedestrian river walk, office space.
The majority included Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer, and Anthony Kennedy. Dissenting were Justice Sandra Day O'Connor, Chief Justice William Rehnquist, Clarence Thomas and Antonin Scalia.
Writing for the majority, Stevens said local officials, not federal judges, know best in deciding whether a development project will benefit the community and that states were within their rights to pass additional laws restricting condemnations.
O'Connor, writing the main dissent, noted the ruling hands "disproportionate influence and power to the well-heeled."
Under the ruling, residents affected would be entitled to "just compensation" as guaranteed by the Fifth Amendment. But for many, that type of compensation means little when one's home has been seized.
On the question of "public purpose," Stevens noted "without exception, our (Supreme Court) cases have defined that concept broadly, reflecting the longstanding policy of deference to legislative judgments in this field."
O'Connor countered, "In moving away from our decisions sanctioning the condemnation of harmful property use, the Court significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public -- such as increased tax revenue, more jobs, maybe even aesthetic pleasure."
Stevens continued, "Promoting economic development is a traditional and long accepted function of government. There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized."
O'Connor's words are powerful, too. "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result."
As Stevens noted, perhaps the real answers lie within individual states which are "within their rights to pass additional laws restricting condemnations if residents are overly burdened." That, however, may prove to be a tough political challenge for states, acting singularly and independently.
If we amend the Constitution, it should be to add the ability to lock up the SCOTUS when they express an opinion that contradicts the plain language in the Constitution.
I'd like to see the wording of Floyd's proposed constitutional amendment.
HJ 60 IH
Proposing an amendment to the Constitution of the United States relating to the permissible uses for which private property may be taken.
Mr. ADERHOLT introduced the following joint resolution; which was referred to the Committee on the Judiciary
Proposing an amendment to the Constitution of the United States relating to the permissible uses for which private property may be taken.
Thanks. So many palms get greased locally, I just wonder if anything like this will every see the light of day?
I don't believe, though I am not certain, that a SCOTUS appointment was originally intended to be a lifetime appointment. In any event, how about a term limit on appointments?
?....'another'.....means.... 'more laws'....are scientific...$$$$$....????....for internationalist-lawyers?
How about an amendment to protect from government intervention, PERIOD!!!!!!!!!!!
This should be handled by the states and municipalities, where (conveniently) legislators, and often judges, are elected by the affected public. If the people elect creeps, they've nobody to blame but themselves if their property is snarfed for the benefit of campaign donors.
Why pass another amendment that the royal black-robes will twist and ignore?
In Kelo, five so-called justices clearly ignored the 5th and rewrote the constitution. They changed the phrase "public use" to "public interest," which is nothing more than the American version of the Marxist "common good."
The solution in this case would be for congress to impeach these five Marxists and throw them off the court. I would add tar and feather, strip them of all property and ship the lot of them off to North Korea.
I'll hold my breath waiting for congress to act.
hmmm while not expressly stated as 'a lifetime appointment', Article III, Section 1, implies it by "shall hold their Offices during good Behaviour". That's pretty much an open door.
***In any event, how about a term limit on appointments?***
Nope can't, that would require an amendment to the Constitution.
But here's the real problem (two actually).
1) Our founding fathers as wise as they were, considered the Judicial Branch as the "LEAST dangerous to the Republic" (Alexander Hamilton) and gave it the least amount of thought.
2) Secondly, James Madison the 'father of the Constitution' could have told SCOTUS to 'go pound sand' in 1803 after Marbury v. Madison. That set the ball rolling for Judicial Power Tyranny. If Madison would have said what Andy Jackson allegedly said, things might be a lot different.
Jackson supposedly said, "Justice Marshal has made his decision - now let him enforce it."
Unfortunately, the term "public" will need to be defined.
The most important one is repeal of XVII, of course.
A second amendment using contemporary language would be good, or simply adding another clause: "It's not about duck hunting".
I'm sure there are many others.
What I see is the fierce arrogance and self importance of the legal profession. Lawyers, especially those in mandatory bar leadership, (the legal political elite) are very wrapped up in assuming the permanence of their leadership.
I can seriously see a point where a fed up public will create "some way" to ultimatly bypass the courts. Whether it is via mandatory arbitration, or mandatory mediation, or even requiring the parties communicate without lawyers FIRST.
I can even see were fed up citizens start to shut down law schools so there are no to many UNDERemployed lawyers.
At present individual constitutional amendments are the only viable way to override teh USSC. IE a federal marriage amendment is the only way to do away with the USSC authority.
Yessir on this one, and on axing XVII & fixing II (esp. the duck clause!).
The takings clause has stood between Americans and real socialism. To strengthen it this way would be marvelous.
Libertarian ping.To be added or removed from my ping list freepmail me or post a message here
"Yessir on this one, and on axing XVII & fixing II (esp. the duck clause!)."
Strange that nobody's mentioned XVI and XVIII (which would automatically delete XXI)...
You got that right. As some politician was pointing out a couple weeks ago - it's pretty hard to come up with any wording to derail this kelo thing because the US Constitution is already so clear on it.
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