Property Rights and Protection Thereof
By Dan | June 30, 2005 - 10:20 am - Posted in Politics & Policy, Liberals, Op Ed, Government, Best Of, Legal

So the Supreme Court of the United States, or at least 5 severely misguided members of the Court, have decided that a land owners’ property rights are subject to forfeiture if the government can argue that a private developer could provide better tax revenue.

The principle of eminent domain is as old as the idea of property rights: what the king giveth, the king may taketh away. In certain respects, this ruling is a return to the Magna Carta, which provided that any land granted to a person would revert back to the grantor if such person made destruction or waste of the land. In other words, the king granteth, the peasant screwith upith and the king reclaimith. Of course, many things have changed since 1297. For one thing, we do not live under a king. For another, we have a Constitution that governs our laws and, at least in my version, there is no mention of any higher law.

There are, however, enumerated rights. Perhaps the Justices are too consumed with the narrow issues that fall to them and are in need of a refresher course in the broader points of constitutional law. Here is my humble attempt:

Having just come through a nasty war with a tyranical bastard (and being endowed with foresight beyond that of ordinary men), our founding fathers knew that all governments, given enough time, become their own special breed of tyranical bastard. (To wit, Kelo v. New London). Therefore, the founders determined that it was necessary to provide the states and their citizens with safegaurds against the abuse of what was supposed to be limited federal power. (This idea is known as “federalism”).

The Bill of Rights, although a series of amendments to the Constitution, are an integral part of the balance struck between the fledgling republic and its constituent states and their citizenry. (The idea that governments are a social contract among men comes from John Locke. You may want to read some of his work.) The order of the Bill of Rights is not accidental:

  1. Freedom of Expression, Religion and the Press
  2. Right to Bear Arms
  3. No Quartering of Soldiers during peacetime
  4. Unreasonable Search and Seizure Prohibited
  5. Right to Due Process and to Avoid Self-Incrimination
  6. Right to a Speedy and Fair Trial
  7. Right to a Jury
  8. No Excessive Bail or Cruel and Unusual Punishment
  9. These rights aren’t a complete list.
  10. The States have all residual powers not granted to the federal government or prohibited by the Consititution.

It is the first five that are particularly compelling in this case. First, the freedom of expression. It is because of this right that I can write this item and say what I’m about to say about the Second Amendment. The right to bear arms–by far the most important right. So important, I will cut and paste it in its entirety:

A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.

Now, some legal scholars (I’m being generous here), tend to read the word “people” in the third clause to be the “Militia” referred to in the first. This is nonsense. The founders knew that their fledgling country would need a Militia to hold itself together. They also knew that power corrupts, even when placed in the most benevolent hands. The first two clauses merely state the premise, “Yes, we know that there will be a Militia and we agree it is necessary for our security.” The third clause, however, that’s the payoff: “But don’t screw with us, or we’ll do to you what we did to King George.” The whole premise of the Second Amendment is that the possibility of violdent overthrow of the government is a necessary restraint on government power. Therefore, the government shall not be allowed to restrict the right of the citizens to load up and, if it comes to it, fight off the militia and institute a new government.

If we speak out, if we peacably assemble, if we demonstrate and you still don’t listen, we have the right to secure our own freedom and safety. To put it another way, if our First Amendment Rights are ineffective, our Second Amendment Rights will be exercised. Thus, the Third Amendment. This one is not litigated very often, but it puts the other rights in context. What we’re talking about here is the Army putting a platoon in your house. Draconian thought, but that is the frame of reference the founders had.

The Fourth and Fifth Amendments are essentially the crystalization of property rights. The Fourth Amendment says that the government cannot conduct unreasonable searches and seizures. In other words, they cannot arrest you, search your person or your things without a reasonable basis for doing so. The Fifth Amendment says that they cannot take your life, liberty or property without due process of law, and–this is the critical point for Kelo–if the government exercises its common law power of eminent domain, it must (1) do so only for a public use and (2) must pay just compensation.

What is the meaning of the Kelo case then? Essentially it has two elements: (1) “public use” can be read so broadly as to include the sale of someone’s home to a private developer on the premise that the development will provide additional taxes, and that those taxes will be used for the public (don’t vomit yet, there’s more) and (2) that “just compensation” is just a throw away phrase. You see, “just compensation” should mean the price at which two private parties would enter into a purchase and sale agreement for the property. Obviously Ms. Kelo is not receiving just compensation, otherwise the developer would not have had to call in political favors from the fat retards that run New London.

So here’s what 5 allegedly educated judges have wrought: Private developers need only to provide a plan to increase the fat retards’ tax base in order to take a person’s home. A government is nothing more than a social contract among men. That contract creates positions and roles to be filled by men. When those men overstep their bounds, when the breach the social contract, the people have a right to overthrow the government. These 5 justices have put forth a rule of law that says “Your home will only stand so long as we allow it.” This is not the American way. This is not the rule of law, it is the rule of commerce. Perhaps the justices should read the Second Amendment more carefully.

BTW, there’s a wonderful idea for Justice Souter’s home: Let’s hope the “Live Free or Die” politicians of Weare, NH see the poetic justice and approve the plan.