The Supremes: Trashing the Constitution

George C. Landrith

The Supreme Court by a 5-to-4 vote continued its unrelenting thrashing of the Constitution. The Court ruled in Kelo v. City of New London that local governments may seize private homes, businesses, or land against the owner’s will and then re-sell the property to another private owner. No real “public use” is required; the government need only allege that the new owner will generate more taxes. Thus, if the government thinks that a convenience store, hotel, apartment building or business will result in more taxes, they can force you out and compel you to sell your home. That’s the verdict of five unelected liberals – in black robes who obviously haven’t read Constitution in years.

The Takings Clause of Fifth Amendment to the Constitution prohibits the government from taking private property unless it is for “public use” and “just compensation” is paid. The Founders believed these two checks on the government’s power to take private property were critical to preventing its abuse. Historically, the government could require private landowners to sell their property to the government for things like schools, libraries, and roads. But now the government can force you against your will to sell them your land simply because they want it. They can now justify this abuse simply by alleging the new owner will likely pay more taxes than you pay. This is stunning!

This is what happens when liberals rule on your constitutional rights. To them, the document has no inherent meaning – it means whatever they want it to mean. When they say, “It is a living, breathing document,” that is code for, “It is a meaningless document and five of us can change it whenever and however we want.”

The five liberals on the Supreme Court have once again taken off their judicial robes, violated their oath of office, trashed the Constitution, and abused their power to unilaterally rewrite or amend the Constitution. Government now can take all private property for essentially whatever reason its wants. Next time some well-heeled developer thinks he’d like to build himself a bigger house on your property and you won’t sell it to him, he can just ask the city council – with whom he plays golf and to whose campaign he contributes – to force you sell your home to him. So much for liberals caring about the “little guy.”

The Court’s majority opinion blathered and bloviated for more than twenty pages ineptly arguing that seeking more taxes is a “public use” as intended in the Constitution. This, of course, turns the Fifth Amendment on its head and makes the term “public use” completely meaningless. Public use was once a limit on government’s ability to seize your property. Now, anything qualifies a public use. Thus, it is no longer a real check on government abuse. The Court essentially amended the Constitution by removing the public use requirement – and they did it with only five votes.

Sadly, the Court’s decision and other recent decisions make it clear that the Court now gives scant attention to the Constitution itself and instead prefers to discuss and rely upon foreign law, treaties to which the United States is not a party, public opinion polls, and earlier court decisions. But the actual text of the Constitution receives scant attention. The historical context and the intention of the Founders receives even less.

In a stinging dissenting opinion, Justice O’Connor correctly states, “[A]ll private property is now vulnerable to being taken and transferred to another private owner…. [T]he Court ... wash[es] out any distinction between private and public use of property – and effectively [deletes] the words “for public use” from the Takings Clause of the Fifth Amendment.”

Justice Thomas, also dissenting, wrote, “I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution…” Justice Thomas is absolutely correct. The Supreme Court has no legitimate power to eliminate our enumerated constitutional rights. But five justices did precisely that and violated their oath of office.

If this most recent decision doesn’t highlight the need for the President of the United States to appoint, and for the U.S. Senate to confirm judges who will strictly uphold and faithfully interpret the Constitution, nothing will.

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Mr. Landrith is a graduate of the University of Virginia School of Law, where he was Business Editor of the Virginia Journal of Law and Politics. He had a successful law practice in business and litigation. In 1994 and 1996, Mr. Landrith was a candidate for the U.S. House of Representatives from Virginia's Fifth Congressional District. He served on the Albemarle County School Board. Mr. Landrith is an adjunct professor at the George Mason School of Law. He is recognized as an authority on constitutional law and jurisprudence, federalism, global warming, and property rights.

george@ff.org