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When Supreme Court Betrays Public Trust It Becomes Just to Punish Supreme Court Justices

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Despite the self interested arguments of law professors like Peter J. Smith of Washington University Law School, public outrage over the Kelo v. New London decision is entirely justifiable and not at all “the product of a serious misunderstanding of the court’s decision.” As every competent lawyer knows, eminent domain only provides just compensation for property holders who have the means to hire the best of lawyers. The Stevens decision will thus provide a new boon for the most pernicious of trial lawyers.

According to departing Justice O’Conner’s dissent :

“Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:

“An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority … . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it.” Calder v. Bull ….

“Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded–i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public–in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.”

With these terrifying words O’Conner, makes clear what actually occurred in the case of Susette Kelo v. New London, Connecticut: Americans of ordinary income lost the right to private property held throughout the history of our nation until June 23, 2005.

An act of our unintended “legislature” crushed the interests of the vast majority of American citizens. Justices Stevens, Souter, Kennedy, Ginsburg, and Breyer presumed Americans no longer want their private property rights to be protected as they were prior to June 23, 2005. As a consequence, this will truly be an infamous date in American history. On July 24, 2005, those vicious enough, and with means enough to afford the best legal teams, could begin to take property from those of us without such means.

Private property now can only be held somewhat safely by those few with wealth enough to hire the best legal guns.

So, I disagree with Professor Smith, the building campaign to seize Supreme Court Justice David H. Souter’s New Hampshire farmhouse to build a luxury hotel, is fully justifiable. His legal decision was a direct attack on the common American citizen in favor of the legal professionals who stand to profit from that decision. I look forward to having a snack at the “Just Desserts Café” the moment it opens. Oh, by the way Justice Souter, please do enjoy the paltry comforter upon the bed you made for yourself — and for us — at the “Lost Liberty Hotel.”

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About carmine

  • http://adamantsun.blogspot.com Steve S

    Your first two links need fixing.

  • http://selfaudit.blogspot.com Aaman

    Fixed by yr editors:)

  • http://www.ryanclarkholiday.com ryanclarkholiday

    had to post PHD huH?

  • carmine

    Thank you Aaman. Still a novice at this stuff. I guess the PHD really means just Piled Higher and Deeper, which is why it comes after the BS.

  • John Ryskamp

    John Ryskamp
    [edited address]

    Writing your own eminent domain proposal? Wonder how
    it might affect outcomes, even those involving religion? Here are
    some tips. It’s not easy to find the
    right words to accomplish what you want. For example,
    forbidding eminent domain for “economic development”
    won’t stop a single eminent domain action because the
    term is so vague it doesn’t distinguish one type of
    eminent domain action from another, which is what Justice Stevens pointed out in the Kelo opinion (it is the reason the Kelo homeowners lost their case, by the way).

    The proposal put forward by Oregonians in Action requires
    government ownership of seized land. However, it’s
    easy to get around that by having the government
    retain title at the same time it gives effective
    control to a private party.

    The devil is in the details, so watch out! So here’s
    a comparison of
    some other typical state proposals:

    CALIFORNIA

    This state’s proposed Constitutional amendment
    contains two key provisions:

    “Private property may be taken or damaged for a stated
    public use only when just compensation, ascertained by
    a jury unless waived, has first been paid to, or into
    court for, the owner. Private property may not be
    taken or damaged for private use.”

    It appears the authors meant to tighten up “public
    use” by mandating that it be “stated.” However, any
    formulation can be developed to satisfy this
    requirement, without changing the outcome in any
    eminent domain action. The problem is that no
    definition of “private use” is provided. In default
    of that, the courts would be likely to apply the
    traditional idea: “private”-forbidden-use is eminent
    domain used in violation of another law or as a result
    of some criminal violation.

    “Private property may be taken by eminent domain only
    for a stated public use and only upon an independent
    judicial determination on the evidence that the
    condemnor has proven that no reasonable alternative
    exists. Property taken by eminent domain shall be
    owned and occupied by the condemnor or may be leased
    only to entities that are regulated by the Public
    Utilities Commission. All property that is taken by
    eminent domain shall be used only for the stated
    public use.”

    The eye-opener here is “no reasonable alternative.”
    Strict scrutiny says that the government action must
    be narrowly tailored to achieve a compelling
    government interest. “Narrowly tailored” is usually
    taken to mean that there is no reasonable alternative.
    Under this provision, therefore, it would appear that
    all eminent domain is subject to strict scrutiny. One
    wonders if the authors realize this, and if so, if
    they realize the level of opposition likely to develop
    by governments and private interests which have always
    used eminent domain under minimal scrutiny. Note that
    this provision provides strict scrutiny for housing
    with respect to eminent domain, and so immediately
    raises the question with respect to housing and other
    facts, in what other contexts they receive strict
    scrutiny? In the alternative, what is the likelihood
    that a pressured court would reconcile “no reasonable
    alternative” with “public use” to find that “no
    reasonable alternative” in this proposal, means
    “rationally related to a legitimate government
    purpose”-effectively gutting the proposal? Or does
    this language change the role of the State in the
    Federal system, making it impossible for the state to
    legislate for the general welfare? The owner,
    occupation and leasing provisions seem to be merely
    more invitations to creative evasion, and not likely
    to change the outcome of any eminent domain action.

    CONNECTICUT

    The Connecticut General Assembly decided to conduct
    its review of eminent domain law through a specially
    convened Joint Judiciary and Planning and Development
    Committee, which began hearings on July 28, 2005.
    There seems to be a split between two provisions:

    “Eminent domain shall not be exercised with respect to
    housing unless it is substantially related to an
    important government interest”

    or

    “Eminent domain shall not be exercised with respect to
    housing unless it is narrowly tailored to achieve a
    compelling government interest.”

    These provisions immediately raised the question, what
    about eminent domain over a business which provides
    the income-that is, the maintenance-for its owner?
    Then is this an appropriate addition:

    “Eminent domain shall not be exercised with respect to
    maintenance unless it is narrowly tailored to achieve
    a compelling government interest.”

    ALABAMA

    Signing Alabama’s revision to eminent domain on August
    3, 2005, Governor Robert Riley said: “What our new law
    does is restore the level of protection that existed
    prior to the Supreme Court’s ruling in June,” even
    though the decision merely ratified previous rulings
    on eminent domain. The Alabama law purportedly
    eliminated eminent domain for industrial, commercial,
    office, retail or residential development, but could
    be used to construct roads, public buildings and to
    remove blight; blight included areas which are
    obsolete, faulty in arrangement or design, or in
    danger of becoming blighted. As Dana Berliner, an IJ
    attorney, said of the blight provision: “All of these
    are ways of saying we’d like to construct something
    else here that has a different layout.” (The governor
    replied that he was willing to consider changes.) The
    apparent exceptions to “economic development” are more
    problematic than the language about blight. In the
    case of a concept such as “economic development”
    which, as Justice Stevens pointed out, does not, in
    the first place, distinguish a different kind of
    eminent domain, making “exceptions” to “economic
    development” merely puts the question, what is the
    Constitution? We are back to square one; the concept
    of “exceptions” retards, rather than advances, the
    inquiry into eminent domain.

    For a discussion of the historical background of the
    Constitution, see this article, which will appear in
    the November 2006, issue of the Stetson Law Review:
    Ryskamp, John Henry, “Kelo v. New London: Deciding the
    First Case Under the New Bill of Rights.”

    Now, what about religion? Would this protect
    churches against eminent domain:

    “Eminent domain shall not be exercised with respect to
    an establishment of religion, or the free exercise
    thereof, unless it is narrowly tailored to achieve a
    compelling government interest.”

  • Balletshooz

    This might be an extreme reading of eminent domain. Wouldnt it be pretty rare that someone would undergo a taking?

  • http://www.elitistpig.com Dave Nalle

    Hardly, BS. Here in Texas there were people lining up to take advantage of Kelo before the decision even came down – see my article on the recent passage of our eminent domain bill located here.

    Dave

  • http://sussfr.blogspot.com Matthew T. Sussman

    The ruling in my eyes was less of a defeat for property rights and more of a victory for states’ rights.

    Now propositions can come to the people and the states can vote according to their needs.

    So bring me a prop on eminent domain and I will shoot it down for my state, because I am against it. But perhaps another state will need it more than mine.

    The law is slow. Shocking!

    (P.S. – trying to usurp a SCOTUS judge’s house for a hotel is petty and spiteful.)

  • Nancy

    Long live petty & spiteful, then.

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