Assault on Private Property Rights

Off Topic Politics & World Issues
41

No man thinks more highly than I do of the patriotism, as well as abilities, of the very worthy gentlemen who have just addressed the house. But different men often see the same subject in different lights; and, therefore, I hope it will not be thought disrespectful to those gentlemen if, entertaining as I do opinions of a character very opposite to theirs, I shall speak forth my sentiments freely and without reserve. This is no time for ceremony. The question before the house is one of awful moment to this country. For my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at the truth, and fulfill the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offense, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the Majesty of Heaven, which I revere above all earthly kings.

      Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the numbers of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation? For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth, to know the worst, and to provide for it.

      I have but one lamp by which my feet are guided, and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years to justify those hopes with which gentlemen have been pleased to solace themselves and the House. Is it that insidious smile with which our petition has been lately received?

      Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with those warlike preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation; the last arguments to which kings resort. I ask gentlemen, sir, what means this martial array, if its purpose be not to force us to submission? Can gentlement assign any other possible motive for it? Has Great Britain any enemy, in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us: they can be meant for no other. They are sent over to bind and rivet upon us those chains which the British ministry have been so long forging. And what have we to oppose to them? Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne! In vain, after these things, may we indulge the fond hope of peace and reconciliation.

      There is no longer any room for hope. If we wish to be free--if we mean to preserve inviolate those inestimable privileges for which we have been so long contending--if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained--we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of hosts is all that is left us! They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength but irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations, and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable--and let it come! I repeat it, sir, let it come.

      It is in vain, sir, to extentuate the matter. Gentlemen may cry, Peace, Peace--but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

Patrick Henry, 1775

42

A troika of good observations from GMU law professor Orin Kerr:

http://www.volokh.com/archives/archive_2005_06_19-2005_06_25.shtml#1119570793

Perspectives on Kelo: There’s lots of blogging about Kelo both here and elsewhere today, so I thought I would just add three quick points:

  1. The opinions in Kelo remind me a lot of the opinions in Gonzales v. Raich. The Court has once again reaffirmed the academic common wisdom ? in Raich, that the commerce clause power is virtually limitless, and in Kelo, that almost everything is a public use. Both cases involved the same type of line-drawing challenge, in which the Constitution requires a line to be drawn but it’s pretty hard to draw such a line in practice. (It’s difficult to distinguish interstate commerce from intrastate commerce and commerce from non-commerce, and it’s difficult to distinguish public use from private use.) In both cases, the Stevens majority opinion recognized that a line existed in theory, but put it so far out of the way that it won’t bother anyone.

  2. Is it just me, or does Justice O’Connor’s dissent have the feel of an opinion that started out as a majority draft? This is just speculation, and perhaps idiosyncratic speculation at that, but I wonder if she had a majority at conference and lost Justice Kennedy along the way.

  3. The next time someone insists that conservatives like Justice Thomas will do anything to defend corporate interests against the powerless ? and particularly against powerless racial minorities ? feel free to point them to Justice Thomas’s eloquent dissenting opinion in Kelo: KELO V. NEW LONDON . So much for that idea.

43

[quote]Jim_Bobv2 wrote:
What makes you think that a new appointment by W would go against the interests of big business?[/quote]

I don’t want nominees who “go against” any particular segment of society or any group’s interests. I want nominees who enforce the limits the Constitution places on government power, and defend individual liberties from the predations of government action that transcends those powers. And I believe that if Bush looks for originalists, we will get nominees who turn into justices like that.

And check this dissent by Clarence Thomas in Kelo, KELO V. NEW LONDON , vs. the majority’s opinion KELO V. NEW LONDON

44

This has absolutely nothing to do with a conventional liberal/conservative dichotomy. Both “sides” of the political spectrum can point out how this can be used by the opposition party to further the opposition’s aims. Republicans will fail to convince Democrats otherwise and vice versa.

In reality, this isn’t partisan politics, but, as Reason and BB pointed out, a liberty/authority conflict. We all lose. I don’t care if you love or hate GW or Hillary, you lose.

We need a new critique in this country that transcends the tacky distractions of left/right and focuses on liberty/repression. These USSC rulings and the flag-burning amendment are a tragedy for all Americans. However, the real tragedy lies in the inevitable feeding frenzy of repression and centralization of power that will follow. If you don’t think that the entire Republicrat ruling party will pull together to assault our basic freedoms, you’re naive. These rulings have removed very basic checks and balances on government power. This proposed Flag Burning amendment will further limit that damned pesky First Amendment. If this is the kind of hare-brained reasoning that can be derived from the Constitution in its current form, I hate to see how the bastards of the future will interpret a flag-burning amendment.

Those who make it their life to be part of the government, have a fundamental and pathological drive to control other people and increase their own power: hence becoming politicians in the first place. The situation in this country will go from bad to worse. The Constitution was originially written to protect us specifically from this sort of tyranny, and now their justifying it with the Constitution?!? This is like justifying a series of wars with the teachings of Jesus Christ…oh wait, that happens all the time!

45

Another good set of observations from GMU law prof Todd Zywicki:

http://www.volokh.com/archives/archive_2005_06_19-2005_06_25.shtml#1119565830

Kelo: I’ve been trying all day to craft a post that could capture my astonishment–ok, outrage–towards this ruling. But I keep getting so wound up that I have to scrap it. I’ll just give you a few snapshots of my false starts as Subject Lines for posts since mid-day today:

  1. Government by the “Honor System”: The only restraint on government violations of the Bill of Rights is the “honor system”–certainly would make it easier to conduct the war on terror and censor political criticism if those rights were also enforced by the honor system…

  2. Wal-Mart Celebrates: Now Wal-Mart need not lobby for huge development and tax subsidies for its new stores, it can just get the government to take the land it wants…

  3. Would the Supreme Court feel the same way if Pfizer was building its new office on the Chevy Chase Country Club?..

You can probably get the drift of why I scrapped each of these as perhaps being a bit too over-the-top.

So I’ll just add–temperately enough, I hope–that I thought the purpose of the Bill of Rights was to create rights that would be protected from the government, so that we wouldn’t have to rely on the honor system of the government to do the right thing, but had rights that would be enforced. Why not apply the honor system to constitutional protections for speech, religion, and criminal procedure? We can’t trust the government when it comes to allowing a prayer at a high-school graduation, but we can when it comes to taking an old-woman’s house in which she raised her family? It would sure make the war on terror easier if the government could just arrest anyone in the name of the public good as long as it cut an undercompensatory check for the inconvenience afterwards.

The potential for abuse in this ruling is obvious, and the fact that governments cannot be trusted to do the right thing is exactly the reason why the Michigan Supreme Court reversed Poletown earlier this year. And Justice Thomas hits the nail on the head when he observes that it won’t be (and historically hasn’t been) the rich and powerful who are finding their homes condemned and given to corporations, Wal-Mart, or simply someone who will build a bigger house and promise to pay more property taxes (as Will Wilkinson observes, “That is, if you have something somebody richer than you wants, watch out.” Private Site ).

Rather than laundering it through the government, why not just skip the government as middleman and let Donald Trump take whatever he wants whenver he wants it, and just write a check for it? Then we could skip the pretense that this is anything but rent-seeking.

Forgive me for blowing off a little bit of steam…

46

[quote]BostonBarrister wrote:
Jim_Bobv2 wrote:
What makes you think that a new appointment by W would go against the interests of big business?

I don’t want nominees who “go against” any particular segment of society or any group’s interests. I want nominees who enforce the limits the Constitution places on government power, and defend individual liberties from the predations of government action that transcends those powers. And I believe that if Bush looks for originalists, we will get nominees who turn into justices like that.

And check this dissent by Clarence Thomas in Kelo, KELO V. NEW LONDON , vs. the majority’s opinion KELO V. NEW LONDON [/quote]

I’m guessing that W’s nominees will end up being a lot more like Souter than Thomas.

47

Unsurprisingly, the NY Times editorializes in favor of Big Government Power and Kelo here:

Of course, one might think that proper journalistic ethics would have the NYT disclose its itty-bitty little conflict of interest, as the NYT is getting NY to exercise eminent domain power to hand over to the NYT some nicely located property for its proposed new headquarters:

http://kelo-amendment.blogspot.com/2005/06/self-interested-new-york-times.html

48

[quote]Jim_Bobv2 wrote:
Socialism would be taking land to build a school or hospital or something that only goes to the common good.[/quote]

So, the actual constitutional definition of eminent domain is socialism? I was not aware the Founders were socialists. Can you please elaborate?

49

[quote]battlelust wrote:
This is like justifying a series of wars with the teachings of Jesus Christ…oh wait, that happens all the time![/quote]

To say nothing of brutal conquest and inhuman oppresion in the name of Allah.

50

This is wrong, and both sides of the political fence are against this, even if it is for different reasons.

The best way to fight this is to keep an eye on the city councils in your area, and if they do this shit, vote them out of office.

51

[quote]Fonebone wrote:
Jim_Bobv2 wrote:
Socialism would be taking land to build a school or hospital or something that only goes to the common good.

So, the actual constitutional definition of eminent domain is socialism? I was not aware the Founders were socialists. Can you please elaborate? [/quote]

I would say that the idea of eminent domain is somewhat of a socialist idea. As are things like public schools, social security, and many other social programs that have become accepted in our society over the years.

Granted, the fact that there is compensation involved in eminent domain land transfers would have people who are afraid of the “S word” say that it isn’t socialist in nature.

But, the basic idea of having to give up your property for the common good, even if you are compensated for it, sounds socialistic to me.

52

[quote]The Mage wrote:
This is wrong, and both sides of the political fence are against this, even if it is for different reasons.[/quote]

So very true, and I agree wholeheartedly with Battlelust’s assertion that this, like so many other issues, transcends Left v. Right, even though I took a little issue with the excerpt I quoted from his post.

I commented similarly in another thread that we are so divided and conquered as a result of everyone being conditioned (yes, I chose that word carefully) to blame the “other side” for all the world’s problems, when the entire establishment is corrupt and self-serving to the core.

53

I wonder how many corporate farmers saw this and immediately began working on plans to try and obtain farm land from family farmers at cut rate prices?

54

A very nice article by UCLA law prof Stephen Bainbridge on Kelo

By a 5-4 vote, the Supreme Court on Thursday ruled that governments may seize your business and even your home in order to facilitate private economic development schemes.

It’s well settled, of course, that the government can take your property in order to devote the land to some public purpose. The Binghamton campus of the State University of New York, for example, was built in part on land that the state took away from my family. In the case before the Supreme Court, however, the City of New London wanted to seize a neighborhood and turn the land over to a private developer who would then raze the homes and build a big industrial park.

This has become an increasingly common problem. State and local governments increasingly make use of their eminent domain power to take property for what are really private purposes As CNN reported:

http://www.cnn.com/2005/LAW/02/21/scotus.eminent.domain/index.html

[i]"At issue is whether governments can forcibly seize homes and businesses, for private economic development. Under a practice known as eminent domain, a person’s property may be condemned and the land converted for a greater ‘public use.’ It has traditionally been employed to eliminate slums, or to build highways, schools or other public works.

“The New London case tests the muscle of local and state governments to raise what they see as much-needed revenue, which they argue serves a greater ‘public purpose.’” [/i]

The Economist explained the problem quite succinctly:

“Put simply, cities cannot take someone’s house just because they think they can make better use of it. Otherwise, argues Scott Bullock, Mrs Kelo’s lawyer, you end up destroying private property rights altogether. For if the sole yardstick is economic benefit, any house can be replaced at any time by a business or shop (because they usually produce more tax revenues). Moreover, if city governments can seize private property by claiming a public benefit which they themselves determine, where do they stop? If they decide it is in the public interest to encourage locally-owned shops, what would prevent them compulsorily closing megastores, or vice versa? This is central planning.”

Exactly. The government’s takings power is a necessary evil that, if used broadly, can destroy the entire concept of private property rights. As Russell Kirk pointed out, doing so will have devastating affects on society:

http://www.kirkcenter.org/kirk/ten-principles.html

“[F]reedom and property are closely linked. Separate property from private possession, and Leviathan becomes master of all. Upon the foundation of private property, great civilizations are built. The more widespread is the possession of private property, the more stable and productive is a commonwealth.”

The Kelo case is a particularly egregious example of how the takings power can be abused. According to the Economist:

[i]"The day before Thanksgiving 1998, Susette Kelo, a registered nurse, got an unwelcome holiday gift: an eviction order. Her house, and those of six other families living on an abandoned submarine base called Fort Trumbull, had been compulsorily purchased. She had five months to get out.

“What is unusual about this is that her house is no rat-infested health hazard. She bought and spruced it up three years before. Nor is it being seized by a branch of government: the evictor is the New London Development Corporation (NLDC), a private non-profit body.” [/i]

The Supreme Court has held that private property can be seized via eminent domain as part of an urban renewal project when the property is blighted, a loophole that local authorities have greatly abused to seize private property. Yet, in this case, the government didn’t even bother trying to hide behind that fig leaf. They baldly asserted the power to seize private homes because they think some other user can put them to a higher tax generating use, as the following description of the oral argument in Slate made clear:

http://slate.msn.com/id/2113868/

[i]"Justice Antonin Scalia … describes [City of New London lawyer] Horton’s position as: ‘You can always take from A and give to B, so long as B is richer.’ And O’Connor offers this concrete example: What if there’s a Motel 6 but the city thinks a Ritz-Carlton will generate more taxes? Is that OK?

“Yes, says Horton.” [/i]

This is no minor technical dispute. Kirk’s dicta is confirmed by the brilliant work Richard Epstein did in his classic book Takings ( http://www.amazon.com/exec/obidos/ASIN/0674867297/corporatilawa-20 ), which makes a compelling case that the power to take private property is the critical and central power of government that must be constrained if liberty is to have any substance.

Ms. Kelo and her lawyers relied on the Takings Clause of the 5th Amendment, which provides:

“Nor shall private property be taken for public use, without just compensation.”

Note that the Takings Clause has two independent requirements: (1) just compensation must be paid; (2) the property must be taken for a “public use.” The Supreme Court could – and should – have held that this second requirement means that the government may not take away your property to give it to some other private individual (or company) who will then devote it to their own personal or business use.

But the 5 justice majority did not. Instead, so long as the government compensates you, it can take your land and turn it over to some other private person or company.

Unfortunately, the requirement to pay fair market value is a grossly inadequate safeguard on government power for two reasons. First, it fails to take into account the subjective valuations placed on the New London property by people whose families have lived on the land, in at least one case, for a 100 years. In other words, the government now will be able to seize land at a price considerably below the reservation price of the owners. Indeed, as Will Collier explained:

http://vodkapundit.com/archives/007903.php

“… the price even a willing seller would be able to get from his property just took a huge hit. All a developer has to do now is make a lowball offer and threaten to involve a bought-and-paid-for politician to take the property away if the owner doesn’t acquiesce.”

Second, unlike the prototypical eminent domain case, in which the land is seized to build, say, a school or road, in this case the city is using eminent domain to seize property that will then be turned over to a private developer. If this new development increases the value of the property, all of that value will be captured by the new owner, rather than the forced sellers. As a result, the city will have made itself richer (through higher taxes), and the developer richer, while leaving the forced sellers poorer in both subjective and objective senses.

Justice O’Connor’s dissent makes the point eloquently:

[i]“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.”[/i]

After news of Napoleon’s victory in the Battle of Austerlitz was conveyed to British Prime Minister William Pitt, Pitt pointed to a map of Europe and said: “Roll up the map; it will not be wanted these ten years.” In light of the Supreme Court’s decision to side with New London, we might just as well roll up the Takings Clause of the Bill of Rights, because we won’t need it any longer.

One final thought: Reagan appointee Kennedy and Bush 41 appointee Souter voted with the majority, proving once again just how essential it is that Bush 43 pick somebody reliably – and permanently – conservative when there’s an opening

55

[quote]MikeTheBear wrote:
Kuz wrote:
MikeTheBear wrote:
Yup, they flat out got the law wrong. Interestingly, Thomas also dissented in the medical marijuana case saying that the majority’s decision essentially placed no limit on the Commerce Clause. He was right about that, too.

Kuz, do you still practice law or have you moved on to other pursuits?

Interesting question you pose, Mike. I work doing contracts within the Legal department of a big aerospace company. So, while I am CT and NY admitted, I do legal stuff, but do not technically practice law on behalf of the company. Kind of weird, but I’m sure you know what I mean (it is hard explaining it sometimes to people who are non-lawyers).

LOL, I’m in a similar situation. I work for LexisNexis. No more billable hours for me.[/quote]

Isn’t it great? LOL!! I feel bad for people like BB (although he may very well love what he does, the crazy nut). I find more and more of my classmates from law school say things to me like, “Man, I would love to get out of law, but…” They all tend to suffer from having those golden handcuffs, so they stay.

Does this mean you will Shepardize stuff for me for free?

56

I am seriously considering buying some guns. I know others who are, as well. If they want my house to build a Walmart, people will die. I don’t mind saying it.

57

[quote]Fonebone wrote:
So, the actual constitutional definition of eminent domain is socialism? I was not aware the Founders were socialists. Can you please elaborate?[/quote]

[quote]Jim_Bobv2 wrote:
I would say that the idea of eminent domain is somewhat of a socialist idea. As are things like public schools, social security, and many other social programs that have become accepted in our society over the years.

Granted, the fact that there is compensation involved in eminent domain land transfers would have people who are afraid of the “S word” say that it isn’t socialist in nature.

But, the basic idea of having to give up your property for the common good, even if you are compensated for it, sounds socialistic to me.[/quote]

Thanks for the clarification. I agree. I doubt that the Founders’ intent was socialistic, but like most things that flow from government, the definition has broadened over time to increase government authority and diminish personal liberty. That’s the way the world works, I guess…that is, until enough people get pissed off and can agree on enough issues to do something about it. Sadly, I think we are a long way away from that stage.

58

[quote]nephorm wrote:
I am seriously considering buying some guns.[/quote]

Why did you wait this long?

59

[quote]Jim_Bobv2 wrote:
Socialism would be taking land to build a school or hospital or something that only goes to the common good.
[/quote]

If you think that the government is siding with big business just to help out business - you are sadly wrong.

The government is every bit the money grubbing whore that business is.

Why is it socialistic? Tax revenue. The gov’t can make a shitload more money from the increase tax base business will provide than they can from some poo schlub that is just getting by.

60

Hahahaha! You guys should see what has gone down in Pittsburgh for the past couple of years.It looks like their trick is catching on in other cities.

Mayor Murphy and his second Renisance project squashed and booted a bunch of existing businesses to make way for bigger and better businesses, using eminent domain of course. Watching it on the news has been like watching a horror flick filmed on Grant street. It looks like a new strategy is emerging.

I know it isn’t people being uprooted from their homes, but the paralells are amazing.
Sorry I can’t cite cases, reviews and blog spots. I don’t follow law too much, but this one realy rang a bell.