J.A.I.L. News Journal
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Los Angeles, California                                               July 1, 2005

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Land Grabbing,
"Eminent Domain" Style
 
Most of you are familiar with the now infamous U.S. Supreme Court case of Kelo v. City of New London which has raised the eyebrows of both the left and the right. We have gone directly to the opinion of the Supreme Court, downloading both the majority and dissenting opinions in its 5-4 decision. Below is a synopsis of the opinion and our comments.
 
Kelo v. City of New London, 545 U.S. _____  Decided June 23, 2005
 
http://www.ij.org/pdf_folder/private_property/kelo/kelo-USSC-opinion-6-05.pdf
 
"[T]he City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that
they will form a whole greater than the sum of its parts. ...
[I]t is appropriate for us ... to resolve the challenges
of the individual owners, not on a piecemeal basis,
but rather in light of the entire plan."
                                          --Justice Stevens, delivering the Opinion
 
 
"A whole greater than the sum of its parts"?  "[R]esolve...not on a piecemeal basis, but... in light of the [whole]."?  Here again we see the High Court, the ultimate decision-making body in the nation, with its "greater good" philosophy demonstrating its communistic and socialistic --and certainly unAmerican-- logic being foisted upon the American People. Throughout the opinion, government is referred to as "the sovereign" and the individual considered as "piecemeal." 
 
 "...[T]he entire people of the state are directly interested in having the future developments unobstructed by the obstinate action of any individual or individuals." (p.9 n.8). Is not "the entire people of the state" made up of "individuals"? A good analogy is: The Court considers only the entire brick building as sacrosanct without regard to the individual bricks that compose the building, i.e., it is the brick building, not bricks, that is important. The Court would embrace the city's plan of taking out Brick #1, Brick #5, Brick #12, Brick #27, etc. and expect the integrity of the building to be improved --better than ever--after the removal of certain "unwanted" bricks-- even bricks in good condition, not cracked or broken, but yet not wanted by the city. Is "the entire people of the state" improved after certain individuals have been deprived of their homes and displaced? No amount of compensation can replace the sentimental and emotional value that individuals hold for their homes and property that they are forced to give up, some after decades of ownership and possession.
 
Quoting Justice O'Connor, dissenting:  "Petitioners are nine resident or investment owners of 15 homes in the Fort Trumbull neighborhood of New London, Connecticut. Petitioner Wilhelmina Dery, for example, lives in a house on Walbach Street that has been in her family for over 100 years. She was born in the house in 1918; her husband, petitioner Charles Dery, moved into the house when they married in 1946. Their son lives next door with his family in the house he received as a wedding gift, and joins his parents in this suit. ..." [emphasis added].
 
Continuing with Justice O'Connor: "Petitioners own properties in two of the plan's seven parcels-- Parcel 3 and Parcel 4A. Under the plan, Parcel 3 is slated for the construction of research and office space as a market develops for such space. It will also retain the existing Italian Dramatic Club (a private cultural organization) though the homes of three plaintiffs in that parcel are to be demolished. Parcel 4A is slated, mysteriously, for "park support." ... At oral argument, counsel for respondents conceded the vagueness of this proposed use, and offered that the parcel might eventually be used for parking." [emphasis added]
 
Justice O'Connor further: "When interpreting the Constitution, we begin with the unremarkable presumption that every word in the document has independent meaning, 'that no word was unnecessarily used, or needlessly added.' Wright v. United States, 302 U.S. 583, 588 (1938). In keeping with that presumption, we have read the Fifth Amendment's language to impose two distinct conditions on the exercise of eminent domain: 'the taking must be for a "public use" and "just compensation" must be paid to the owner.' Brown v. Legal Foundation of Wash., 538 U.S. 216, 231-232 (2003)."
 
[continuing] "These two limitations serve to protect 'the security of Property,' which Alexander Hamilton described to the Philadelphia Convention as one of the 'great ob[jects] of Gov[ernment].' 1 Records of the Federal Convention of 1787, p.302 (M. Farrand ed. 1934). Together they ensure stable property ownership by providing safeguards against excessive, unpredictable, or unfair use of the government's eminent domain power-- particularly against those owners who, for whatever reasons, may be unable to protect themselves in the political process against the majority's will."
 
[continuing with J. O'Connor further]: "The public use requirement ... imposes a more basic limitation, circumscribing the very scope of the eminent domain power. Government may compel an individual to forfeit her property for the public's use, [emphasis theirs] but not for the benefit of another private person. This requirement promotes fairness as well as security. Cf. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 336 (2002) ('The concepts of "fairness and justice" ... underlie the Takings Clause')."
 
Regarding the sanctity of property ownership, Justice Thomas, diss. wrote: "Blackstone rejected the idea that private property could be taken solely for purposes of any public benefit. 'So great ... is the regard of the law for private property,' he explained, 'that it will not authorize the least violation of it; no, not even for the general good of the whole community.' 1 Blackstone Commentaries on the Laws of England 135 (1765). He continued: 'If a new road ... were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without the consent of the owner of the land.' Ibid. ... The Public Use Clause, in short, embodied the Framers' understanding that property is a natural, fundamental right, prohibiting the government from 'tak[ing] property from A, and giv[ing] it to B.' "  [citations omitted].
 
This decision is yet another reason we need J.A.I.L. It is another split decision, 5-4 by Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer, with dissenting Justices O'Connor, Scalia, Thomas, and Chief Justice Rhenquist.
 
The decision incorporates two basic phenomena:
(1) Interpreting the term "public use" as "public purpose."  "This Court long ago rejected any literal requirement that condemned property be put into use for the general public. ... Not only was the 'use by the public' test difficult to administer ...but it proved to be impractical given the diverse and always evolving needs of society. Accordingly, ...this Court... embraced the broader and more natural interpretation of public use as 'public purpose.' " (pp.8-9); and
(2) Giving deference to governmental decisions, i.e., "legislative judgments" and "the city's determination."
(a) Legislative judgments: "[O]ur public use jurisdiction has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power." (pp.12-13). "Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch." (p.18).
(b) The city's determination: "[The city's] determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference." (p.13) "Just as we decline to second-guess the City's considered judgments about the efficacy of its development plan, we also decline to second-guess the City's determinations as to what lands it needs to acquire in order to effectuate the project." (p.18).
 
Regarding the "public use" interpretation and legislative deference, Justice O'Connor, diss., wrote:  "Where is the line between 'public' and 'private' property use? We give considerable deference to legislatures' determinations about what governmental activities will advantage the public. But were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff. An external judicial check on how the public use requirement is interpreted, however limited, is necessary if this constraint on government power is to retain any meaning. See Cincinnati v. Vester, 281 U.S. 439, 446 (1930) ('It is well established that ... the question [of]what is a public use is a judicial one')." 
 
Justice Thomas, dissenting, wrote: "Long ago, William Blackstone wrote that 'the law of the land ... postpone[s] even public necessity to the sacred and inviolable rights of private property.' 1 Commentaries on the Laws of England 134-135 (1765). ... The Framers embodied that principle in the Constitution, allowing the government to take property not for 'public necessity,' but instead for 'public use.' Amdt.5. Defying this understanding, the Court replaces the Public Use Clause with a
'[P]ublic [P]urpose' Clause, ante, at 9-10 (or perhaps the 'Diverse and Always Evolving Needs of Society' Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is 'legitimate' and the means 'not irrational,' ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a 'public use.'  ... If such 'economic development' takings are for a 'public use,' any taking is, and the Court has erased the Public Use Clause from our Constitution,....  I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution,.... Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. ... [T]he Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. ..."
 
I will quote Justice O'Connor's concluding remarks: "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.'  For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland, et al. eds. 1983)."
 
What an egregiously unconstitutional decision Kelo is. The 5-4 split shows how divisive it is as well. The envelope of tyranny gets pushed a little further toward the destruction of everything we hold dear. Yes, folks, and it isn't going to stop on its own. WE the People have to stop it! 
 
"The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence."
                                                                              --John Adams
The Federal J.A.I.L. Bill will solve this federal problem:  See the DC Intiiative
 
ARE WE READY FOR J.A.I.L. YET?
 
-Barbie-
ACIC, National J.A.I.L. Admin.

victoryusa@jail4judges.org

Webmaster's Note: Please see our page on Eminent Domain Abuse for more information.

 


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