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Friday, 27 November, 2020

Our Property Rights — Going, Going, Gone

Date: 01 July, 2005

By: Chief

Imagere you a multi-billion dollar company? Need to buy some more private property to expand your already huge business? Are the pesky private property owners not willing to sell their property to you? Have no fear — the Supreme Court is here.

The court sold our property rights to the highest bidder.

That is basically, well almost exactly, what has recently transpired. A big thanks go out to the boys and girls dressed in black. Actually it was Justices David H. Souter, Ruth Bader Ginsburg, Stephen G. Breyer, and Anthony M. Kennedy concurring in Justice Stevens' opinion for the court. Justice O'Connor wrote the scathing dissenting opinion and was joined by Chief Justice William H. Rehnquist, Justices Antonin Scalia and Clarence Thomas.

What was at stake in the decision is what is known as the "taking clause" of the Fifth Amendment of the Constitution. The clause states:

"[N]or shall private property be taken for public use, without just compensation."

Of that handy little phrase the two most important words are — "public use." Hence, until the court's decision anyway, no private property could be taken and transfered to another private person or private company. If private property was taken that property had to:

Not anymore, except for the compensation part. Dirtballs.

Property owners beware

Now if you are a private land owner tread carefully. Your property belongs to you only until someone else with deep pockets and an 'in' with your city or county or state government decides that they want your property more than you do. And there is not a single thing you or I can do about it. The highest court in the land said so. And even if you decided to fight it, do you have the kind of money to see a lawsuit through (you are going to lose anyway)? Most people do not. Lovely ain't it? Yes, the property owner is entitled to just compensation.

This whole quagmire is courtesy of the city of New London, Connecticut and Pfizer, pharmaceutical company — with quite deep pockets. The city is a rat hole, and that is being polite about it, or as the court stated "an economically distressed city." So the city reactivated its privately owned non-profit economic development council. This council came up with a plan, subsequent to the Pfizer entry into the city, which was (using the court's wording):

"[P]rojected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas."

Further, in assembling the land needed for the project, the city's development agent had purchased property from willing sellers and proposed to use the power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for just compensation.

Additionally, the planners hoped that Pfizer would draw new business to the area, thereby serving as a catalyst to the city's rejuvenation.

The land would be used for things like a waterfront conference hotel at the center of a "small urban village" that will include restaurants, shopping, marinas (for both recreational and commercial uses), a pedestrian "river walk," 80 new residences organized into an urban neighborhood and linked by public walkway and at least 90,000 square feet of research and development office space.

Now, do you see anything there, other than the public walkway that is for the "public use?" I most certainly do not. It is all earmarked for business (the public walkway is worthless unless the rest of the plan is fully developed, by the way). Which translates into a single word — money.

The real travesty is the individual property owner and the 'taking clause' stood right smack dab in the way of ... commerce. No, that is wrong, alleged commerce. Being there was money at stake both the citizen (property owner) and the Constitution were condemned and demolished by a court of rascals and scallywags. In short, New London, Pfizer and the courts mowed down an important constitutional protection for cash on the barrel head. And because the U.S. Supreme Court issued the ruling, all property owners in the country are now at risk. What a bunch of dirt bags.

Do you recall the words the development council used earlier in this story? How about plan, projected and hope. These blithering idiots are gambling with the Constitution on the hope that something good may come out of it — sometime in the future.

Dissenting views

Justice O'Connor in her scathing dissent started with this:

"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 few instances will suffice to explain what I mean... . [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."

And this jewel:

"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."

Talk about a slam dunk. It was and it is.

Justice Thomas wrote a concurring dissent as well and he hammers the court for their act of sheer folly. Like this:

"The Framers embodied that principle in the Constitution, allowing the government to take property not for "public necessity," but instead for "public use." Defying this understanding, the Court replaces the Public Use Clause with a " 'Public Purpose' " (or perhaps the "Diverse and Always Evolving Needs of Society") Clause, a restriction that is satisfied, the Court instructs, so long as the purpose is "legitimate" and the means "not irrational." 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.' "

Here is another humdinger from Justice Thomas's dissent:

"The Takings Clause is a prohibition, not a grant of power: The Constitution does not expressly grant the Federal Government the power to take property for any public purpose whatsoever. Instead, the Government may take property only when necessary and proper to the exercise of an expressly enumerated power."

And finally this:

"It encourages 'those citizens with disproportionate influence and power in the political process, including large corporations and development firms' to victimize the weak."

Yeah, I think he and O'Connor hit the nail squarely on the head. Too bad they couldn't drop Justice Stevens and the rest of the majority on their obviously pointed and bad faith heads. It would be nice to see though.

It is truly a sad day for property owners. Indeed, it is a sad day for all of us.

Happy Independence Day.

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