Friday, June 24, 2005
Flabbergasted: I must confess that my jaw dropped today when I saw that the Supreme Court ruled that the Fifth Amendment doesn't really mean what it says. A refresher:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [emphasis added]
With its ruling [PDF format] in Kelo v. New London, the Supreme Court has decided that any taking which could conceivably produce a scintilla of public benefit is legal. It doesn't need to be for a "public use" -- as the Fifth Amendment states. If your city council thinks it can get more money in taxes (a "public benefit") by bulldozing your home and putting up a Wal-Mart, then, with today's ruling, they can do it.
From now on, you have no "rights" to your property -- the government can take it away from you and give it to Donald Trump on a whim.
From Justice Sandra Day O'Connor's dissent:
In moving away from our decisions sanctioning the condemnation of harmful property use, the Court today 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. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words "for public use" do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.
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. "[T]hat alone is a just government," wrote James Madison, "which impartially secures to every man, whatever is his own."
The first thought that struck me upon reading this was: "How can the Court's liberals justify such a ruling from their worldview? How can they side with the pharmaceutical giant Pfizer over property owners of modest means?"
There's a lot of commentary all over the Internet on today's ruling, but the only thing that I saw that truly answered these two questions was a comment by Clayton Cramer over at the Volokh Conspiracy. [Cramer's own blog post on the Kelo ruling can be found here.]
Read the precedents that they cite--and remember, these are the liberals taking the side of private corporations against the rights of the individual. This is no surprise; limiting the power of the government to be corrupt would limits [sic] its power to do good. [emphasis in original]
If you're looking for more commentary on the ruling, Michelle Malkin has a plethora of links here.
I'd love to know how we would go about "fixing" the Court's ruling. Congress should drop the flag-burning amendment and find some way to add something useful to the Constitution.
Would: "The Fifth Amendment means what it says -- take it literally you arrogant judges" work as a new amendment? I'm open to suggestions.
On a related note: Every time Justice Clarence Thomas authors an opinion, he proves Sen. Harry Reid to be a fool. From Thomas' dissent [footnotes excised]:
The Court has elsewhere recognized "the overriding respect for the sanctity
of the home that has been embedded in our traditions since the origins of the Republic," when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to "second-guess the City's considered judgments," when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners' homes. Something has gone seriously awry with this Court's interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not.
There needs to be a serious check on the Supreme Court's knack for finding "rights" where they are allegedly "implicit" and dismissing "rights" when they're "explicitly" enumerated. If we're going to keep the Republic, then the judicial oligarchy must be brought to heel.