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In 2005 I was at the national Junior Miss Pageant where my daughter was representing Alaska. On the plane ride into Mobile, Alabama I met a wonderful family from a western state whose daughter was also representing their own. I sat next to the Dad, a real estate developer, and we quickly hit it off, sharing the same interests in faith, hunting, fishing and conservative, limited-government politics.
The affection we all felt for one another only deepened until late in the week, when the papers announced the infamous Kelo v New London decision, the Roe v Wade of property rights.
In the Fifth Amendment, the federal government is prohibited from seizing private property for public use, 'without just compensation'. OK, so let's pretend that a farmer has land in the way of an interstate highway, and he must sell it. He can haggle for the price, and then come to terms. But what happened in Connecticut was a bit different.
A private developer in New London wanted to raze an entire neighborhood and build a shopping mall complex. However, the homeowners proved reluctant and eventually, defiant, towards the offers the developers made for their homes and property.
Not to be stopped, the investment group persuaded the city of New London that, with increased sales taxes and the satellite businesses that malls always attract, it was in the city's interests to seize the property under the principle of 'eminent domain', and permit the developers to have their way.
Now, I have no idea how the State of Connecticut handles these questions. In Alaska, our own state constitution deals with this question in Article 1, Section 18, and I would guess that Connecticut has similar wording.
The problem is, the home-owners lost their case and appealed to the U.S. Supreme Court. Their case was a good one on its own merits: private interests are not the same as the government's. However, I would suggest that the very act of appealing to a federal and eventually, the Supreme Court, represents the kind of faulty constitutional understanding that has placed us where we are today: a system of judicial tyranny and judicial legislation.
You see, the 5th amendment (which includes many other famous guarantees, such as the right to remain silent) was only meant to apply to federal laws and federal cases. But, because the misnamed 'Bill of Rights' has been used to apply to the states everywhere, now when the Supreme Court makes a decision, a one-size-fits-all is then mandated for all fifty states!
Even if the court had protected the unfortunate Kelo family and the other home-owners of New London, it would have set the dangerous precedent (actually, it was done long ago, anyway) that the federal courts could indeed interfere in a state question.
Yes, decided on a local basis, the Kelo decision was unjust . . . but the damage would have been limited to Connecticut, and not to 300 million people. And, the state of Connecticut would have been far more responsive to such outrages with, perhaps, a legislative solution. Now, all Americans will suffer from loss of property rights because of this. And, here in Alaska, just how responsive is a capital 5,000 miles away?
So, what can be done?
First, it is the President, and not the courts, that has all the power of enforcement. Presidents routinely prioritize their Department of Justice in law enforcement. Besides, even though the Constitution says that in Article II, Section 3 that "he shall take care that the laws be faithfully executed", this would seem to be trumped by the President's oath of office to "preserve, protect and defend the Constitution of the United States", found in Article II, Section 1, Cl. 8.
What if a president finds himself with what he considers an unconstitutional law? Jefferson did with the Alien & Sedition Act . . and he refused to enforce it. Andrew Jackson defied the courts to enforce one of their decisions. So, court or congress, the President has a type of veto control over them.
If this seems like it could lead to chaos, keep in mind the Congress could decide to impeach a recalcitrant and stubborn president, if they deemed the issue important enough.
But Ronald Reagan was quoted as saying "My oath of office requires that I enforce all supreme court decisions, even those I disagree with."
And George Bush II, when signing the dangerous McCain-Feingold bill into law: "It's probably unconstitutional, but that's for the supreme court to decide."
This is constitutional hogwash!
As a second level of remedy, Article III, Section 2 permits the Congress to except the court from any type of case that it so chooses. This is what I will bring to the U.S. Senate.
As a caveat, I rushed to my new-found friend with the newspaper and the headline, and his reaction, I suppose, should not have shocked me too much --- he thought it was great! (remember, he was a very successful real estate developer himself). This just goes to show that when your own skids are being greased, tyrannical government is just fine.
And, it may tell us more about how we got here than anything else.
For freedom,
Bob Bird
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