June 23, 2005

Out here in "Catoland" -The Erosion of Freedom

Here in "Catoland," as the Nashville Scene's Bruce Barry calls it (which I take as a compliment, but I'm not sure he meant it as one), I personally feel that private ownership of property is one of the cornerstones of liberty. In fact, I would count it under the natural rights of man. While the Supreme Court ruling in Kelo is not groundbreaking, it does represent an erosion of private property rights that has been going on for many years now.

In the 5th Amendment of the Constitution of the United States, the last line states, "nor shall private property be taken for public use, without just compensation." The meaning of the phrase "public use" has now taken on such a distorted definition that it can be anything from a public roadway to (now) a private company that will employ people in an economically depressed area (while at the same time provide more tax revenue to the local government). That's quite a wide definition.

From the ruling:

...while the city is not planning to open the condemned land–at least not in its entirety–to use by the general public, this “Court long ago rejected any literal requirement that condemned property be put into use for the … public.” Id., at 244. Rather, it has embraced the broader and more natural interpretation of public use as “public purpose.” See, e.g., Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158—164. Without exception, the Court has defined that concept broadly, reflecting its longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power. Berman, 348 U.S. 26; Midkiff, 467 U.S. 229; Ruckelshaus v. Monsanto Co., 467 U.S. 986. Pp. 6—13.

Whether it's a longstanding policy or not to allow legislative powers to decide what's best in the needs of the public to take private property is really of no concern of me. Why? Just because you have a set precedent doesn't make it right. Our Supreme Court has taken precedent to mean more than the original intent of the Constitution and has eroded it's meaning far beyond that original intent.

Legislative Judgement

Earlier today, Glenn Reynolds quoted Supreme Court Justice Joseph Story from his Commentaries on the Constitution written in 1833. The quote provides a good argument against legislative powers being used in the determination of "public use..."

It seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no state government can be presumed to possess the transcendental sovereignty to take away vested rights of property; to take the property of A. and transfer it to B. by a mere legislative act. A government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty, and private property should be held sacred. At least, no court of justice, in this country, would be warranted in assuming, that any state legislature possessed a power to violate and disregard them; or that such a power, so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be implied from any general expression of the will of the people, in the usual forms of the constitutional delegation of power. The people ought not to be presumed to part with rights, so vital to their security and well-being, without very strong, and positive declarations to that effect.

Why would it be such a detriment to freedom to allow a legislative authority such discretion? I don't think anyone can argue against the fact that a legislative authority tends to do things that best benefit itself. It does this by either creating more revenue (through taxation) or by doing things that garner more votes, and those two actions are the reasons that Justice Story most likely took the stance he did. In Kelo, the city of New London, CT will receive more tax revenue from Pfizer than it did from the private property owners, and the legislative body that condemned the property would presumably get more votes based on the creation of more jobs.

The "Common Good"

The arguments in favor of the Supreme Court's ruling in Kelo seem to be ones that present a world-view that it's ok to take things from a private individual if that which is taken will benefit the common good. Unfortunately, that world-view is narrow and quite dangerous to liberty. When one goes down that path, new reasons to do things for the common good can always be found. The bad news is that we, as a society, have been going down that path for many years now.

The struggle for the "common good" over the rights of the individual is tearing our society apart. You, as an individual, must be forced to give up something so that it will benefit someone else ("forced" being the keyword here). That may sound good if you have a liberal or socialistic viewpoint, but today you have seen that this "common good" ideal can and will be eventually abused because instead of helping the poor, it has helped an "evil corporation." It's the set direction which such a good intentioned ideal must follow.

To us here in "Catoland," the common good is best served only when individual, natural rights are upheld. To go against the individual is to go against the common good...even if the intention is not to do so.

Either way, this Court had a chance here to at least reverse a part of the ill conceived precedent of trampling on an individual's rights for the "common good." It failed. Yes, Justice Kennedy's separate concurrence may have "softened the edges" of the ruling, but at the same time, a flawed path was still followed.

Is the Sky Falling?

Raith with the Commerce Clause, and now Kelo with the 5th Amendment coming within weeks of each other have been a virtual one-two punch on liberty (in additon to other fiacos in recent years with McCain-Feingold on the 1st Amendment and a complete loss of the 4th Amendment with such things as the Patriot Act).

No, the sky isn't falling. It has been merely creeping slowly down upon our heads over the past several decades, but in the past couple years it's been moving faster. That speed along with this month's Supreme Court rulings have created a sort of "perfect storm" which seems to be making people realize that their liberties are slipping away. They are outraged, and they want to do something about it. Would you be calm if you finally woke up one day and realized you were no longer free?

Liberty

On August 26, 1789, the National Assembly of France approved a Declaration of the Rights of Man and of Citizens which consisted of seventeen rights (written mainly by The Marquis de Lafayette with help from our own Thomas Jefferson). We, after our struggle against oppression with the American Revolution, inspired the French. After all, liberty can be quite contagious.

If you have time, read through that declaration. When you do, compare it to where we are today, and ask yourself, "are we truly free?"

Comments:

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"Catoland." Actually I meant it as neither compliment nor pejorative; it just seemed apt (and I was in a hurry). Some of the messages in bottles that float off Cato Isle I am sympatico with, others not.

Posted by: bb at June 23, 2005 11:38 PM

hahah...Well...I'll take what I can get.

Posted by: B at June 23, 2005 11:42 PM

I think the year 2005 will someday be recalled as the beginning of the end in so many ways. There's a deep rumble in the ground.

Posted by: Donna Locke at June 24, 2005 12:32 AM

Former IRS CID Special Agent Joseph Banister Acquitted of Tax Fraud And Conspiracy

Government Unable To Prove U.S. Law Requires Income Tax Withholding or Filing

http://joebanister.blogspot.com

.

Posted by: Doug Kenline at June 24, 2005 03:34 AM

Lobsters in the boiling pot.

Posted by: Jakester at June 24, 2005 08:36 AM

Blake, I hope you always remain in Catoland.

Posted by: Glen Dean at June 24, 2005 11:42 PM