Knight Of The Mind

I'll do my best to present a philosophical and generally conservative look at current events and life, the universe and everything. Readers are invited to take all that's posted herein with a grain of salt. or if they prefer, a grain of salt, a slice of lime and a shot of tequila.

Location: Alexandria, Virginia, United States

Greetings and welcome. My name is Steve, I'm 35 years old and I work for the US Army as an Operations Research Analyst. Hence my blog title Knight Of The Mind.

Wednesday, September 29, 2004

Taking The 5th: Eminent Domain And The Bill Of Rights.

Property rights empower every other freedom Americans enjoy. When the state takes away your property, it almost totally deprives you of your power. Fortunately, The Bill of Rights contains language to prevent such perfidy. Unfortunately, local and state governments throughout the US have become particularly devious in skirting this constitutional protection.

The 5th Amendment commonly comes into play during jury trials as a means to prevent a defendantor a witness from being forced to reveal information that may incriminate them. People normally do not associate this particular part of The Bill of Rights with property.

However, the 5th Amendment does contain the clause "nor shall private property be taken for public use, without just compensation." As a result of this clause, property owners have recourse to the law whenever any level of government forces them off their land or deprives them of its value in any way. The owner can attempt to block the taking or at least exact a good, solid pound of flesh in return for the discomfiture.

The legal process by which government takings are adjudicated is known as Eminent Domain. This process has its critics and its well known that you are in trouble if you have to fight City Hall. However, the legal protections afforded to property owners at least require that governments limit their takings and use their powers in a measured and thoughtful manner. At least, that's what The Founding Fathers intended.

According to George Will of The Washington Post, this apparantly is not the case in New London, Connecticut.

That city, like many cities, needs more revenues. To enhance the Pfizer pharmaceutical company's $270 million research facility, it empowered a private entity, the New London Development Corporation, to exercise the power of eminent domain to condemn most of the Fort Trumbull neighborhood along the Thames River. The aim is to make space for upscale condominiums, a luxury hotel and private offices that would yield the city more tax revenues than can be extracted from the neighborhood's middle-class homeowners.

Here the local goverment has decided to bulldoze a bunch of middle to low income homeowners off their land to enhance the tax payoff from a tract of land. The use intended for the land clearly is not public. According to a strict constructionist interpretation of the 5th Amendment, the taking has no valid legal justification.

This leads the brilliant legal minds of the cash-strapped metropolis to start checking for constitutional penumbras that may justify their brigandage or at least throw enough dirt in the air to obscure the obvious issue at hand. In Connecticut they offer this prize-winning gem. John Edwards would be proud.

The Connecticut court, like the courts of six other states, says the ``public use'' restriction does not really restrict takings at all: It merely means a taking must have some anticipated public benefit, however indirect and derivative, at the end of some chain of causation.

If Ostengropenfuhrer Heydritch had read this, he could have added this to his self-justification for carrying out Hitler's Final Solution. This interpretation thoroughly pollutes the intent of the property protection afforded by the 5th Amendment.

Property rights also come under frequent attack from environmental laws. Walter Williams describes a travesty of justice that occurred in Michigan.

This kind of despotism is rife. John A. Rapanos, a 68-year-old Michigan landowner faces a 10-month federal imprisonment and up to $10 million in fines. Rapanos cleared and graded 175 acres of fallow farmland that he had owned since 1950 with the intention of constructing a shopping center. When the shopping center deal fell through, he leased the land to a local grain farmer. What was his crime?

Under the Clean Water Act, no person may discharge, dredge or put fill material into the navigable waters of the United States without a permit. The closest navigable waters to Rapanos' land are in Saginaw Bay, some 20 miles away. Rapanos' crime in the eyes of the U.S. Army Corps of Engineers was that he filled in depressions on his land without permission.

Fortunately, the judge who first heard the case was not drinking The Evergreen Kool-Aid. In fact, he read the case and dealt with it in a perfunctory and direct manner.

In the early stages of Rapanos' case, U.S. District Judge Lawrence Zatkoff -- noting that a drug dealer had been before him that day -- said rebelliously, "Here we have a person ... who commits crimes of selling dope, and the government asks me to put him in prison for 10 months. And then we have an American citizen, who buys land, pays for it with his own money, and he moves sand from one end to the other, and the government wants me to give him 63 months in prison. Now if that isn't our system gone crazy, I don't know what is. And I am not going to do it."

As our governments grow in power, they also grow in appetite and in the capriciousness of their whims. The responsibility for how well or how badly our myriad governments behave lies invested in the collective will of the American citizenry. Thus we must approach the election this Fall with eye towards what sort of judicial appointments will be made by our elected officials. The Constitution is in need of defending, not circumvention. We will only continue to own what we own if we make sure our government remembers who it works for.


As you may or may not already be aware, members of the Watcher's Council hold a vote every week on what they consider to be the most link-worthy pieces of writing around... per the Watcher's instructions, I am submitting one of my own posts for consideration in the upcoming nominations process.
Here is the most recent winning council post, here is the most recent winning non-council post, here is the list of results for the latest vote, and here is the initial posting of all the nominees that were voted on.

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