"[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?
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