"[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.