The End of Private Property - What Now?

What now? (Part I – Consequences)

“And just when will the revolution actually start now?” That was the first question my wife had when I told her of the insane 5-4 ruling by the Supreme Court announced yesterday, concerning the power of government to seize private property.[1] And it is a valid question. This morning, a raft of stories about some of the 10,000 “eminent domain” actions in progress across the former republican union popped up on various web news-sites and newspaper sites.

As many people have pointed out, the United States Constitution, and virtually all institutions of free nations, are built on a solid bedrock of establishing the principle of ownership of property. My recent article on nation-building[2] listed this as the number 2 priority, right after removing government’s power to harm its members or neighbors:

“Establish ownership of property (institutionalize property). Establish and enforce ownership by individuals of all possible resources, including land, structures, water, air, airspace, broadcasting bands (frequencies), ideas, and rights to provide specified services to specific persons or in specific locations for specific purposes. English common law developed to provide this institutionalization of property, and evolved by hard knocks to ensure that resources (assets) held informally or put to use were recognized as property. The institution of property, free from the whims of rulers, invaders, and envious neighbors is essential to create a free society.”

Obviously, this Supreme Court decision, for those in states without very solid protections in their own constitutions against eminent domain, has just destroyed that bulwark of freedom. When coupled with the affirmation (and expansion) of the 1942 case which expands the “commerce clause” to anything Congress wishes to consider “interstate commerce” in the medical cannabis case ruling[3] several weeks ago and Monday’s ruling on a California property rights case[4], it creates a situation in which that “line in the sand” that indicates the final destruction of the Republic has been crossed. Hence my wife’s question.

Indeed, we are only beginning to be able to examine the consequences of this ruling, although one of the four dissenting justices (O’Connor) wrote:

“Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded — i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public — in the process. 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.”

The very evil of this ruling can be seen by looking at the very case on which it was made, and hundreds of other cases now pending across the nation, and sure to be prosecuted with vigor based on this ruling (just as Federal agents in California are even now rounding up “criminals” after the medical cannabis ruling and most recent failure by Congress to rectify the situation).

But we have a very real, very horrific example in today’s news of exactly what this decision will ultimately lead to, titled by one writer as “Holocaust in Zimbabwe.”[5] In that poor nation, its ruler, the power-mad Robert Mugabe, has ordered the demolition of the shacks and gardens of somewhere between 300,000 and one million of its poorest citizens, sending them homeless to live in the streets, or in some cases, burying them or their children in the rubble of their homes; and intends to do the same thing to the houses of people violating zoning ordinances by having offices or workshops in their homes.

“Oh, that can’t happen here!” How often have we heard those words? Yet, it may happen here sooner than later, and in the very town whose tyrannical rulers brought this to the Court in the first place. A number of people in the Fort Trumball area of New London, Connecticut, have said that they will continue to resist the theft of their homes. And so, one day soon, armed police, probably with SWAT teams, handcuffs, battering rams and all the other paraphernalia of dictatorship, will show up on the few remaining doorsteps of the neighborhood (all of the homes which once surrounded those few people who fought in the courts have been demolished and the area apparently looks like Potsdammer Platz in 1946) to assault and drag away, among others, an 81-year-old woman from the only home she has ever had. And no doubt, the blue-clad thugs of the City of New London will be backed up by the armed might of the Connecticut State Police and probably even a variety of federal agency goons.

They probably won’t make her and the other surviving remnants of the community actually live in the streets; they’ll get nice warm jail cells for a while, at least, and when (months or years later) the checks get cut, they’ll theoretically be able to buy new homes – or at least new places to live. But such an eventual outcome does not excuse the criminal (or at least immoral) act of stealing in the first place, nor the mistreatment of the people victims of this theft.

As the editorial in the New Hampshire Union Leader stated on Friday[6]: “In essence, all land in the United States is now state-owned.” No different than Communist China, Communist Cuba, the Third Reich, the Soviet Union, or ancient Egypt or Mesopotamia: the thugs have won.

Some of the immediate impacts have already been discussed on radio, in discussion groups, on blogs, etc.:

1. Churches are in great risk. Religious organizations do not pay property taxes, but now, under the premise that “economic development” = “government revenue enhancement,” this will encourage local governments to exercise eminent domain (i.e., steal) on church properties (and other tax-exempt properties) in order to sell them to new owners for commercial purposes and therefore be able to add them to the tax rolls.

2. Especially in California, with Proposition 13, and other locations where property tax valuations are frozen as long as the residence is not sold, it will be possible (and eminently logical) to condemn the properties, pay the current market value to the owners, then allow them to buy back their property at the same price they just sold it for – a price that now forms the baseline for property tax appraisals and levies: in some cases in California, this apparently would instantly increase property tax generated from the property by five times or more. Or the city/county could simply sell their new property to whomever they would, leaving the old owner out in the cold (albeit with a nice check).

3. The use of eminent domain by unscrupulous “big-box store” chains and opportunistic and tyrannical “economic development” bureaucrats and their schills in city and county councils is well-known, especially in places like the Front Range Metroplex of Colorado, and will see rapid expansion, now that the American Planning Society, Municipal League, and other government lobbying groups have this victory. And to that we can add plans to demolish entire neighborhoods for the sake of constructing vast sports temples in New York, DC, and other places: mixing “bread and circuses” with welfare to the rich (sports owners and players) and vast profits in the form of taxes for cities and counties.

4. Various cities and counties and states can be expected to become a lot more aggressive, and the courts much more biased, in various cases where there is some question as to whether the intended use is indeed “public,” as in dozens of cases regarding easements for pipelines, power facilities (such as power windmills and solar systems), and streets, parking, etc. Abuse will grow significantly.

I don’t have the imagination to come up with some other results of this catastrophic decision, but I can be sure that “innovative” tyrants and their sycophants will use their imaginations. But I am reminded of what newly-confirmed Federal Circuit Court Judge, then-California Supreme Court Justice, Janice Rogers Brown wrote in dissent to the California case I mentioned earlier: "Theft is theft even when the government approves of the thievery," she wrote. "Turning a democracy into a kleptocracy does not enhance the stature of the thieves, it only diminishes the legitimacy of the government." Today, just months later, her words ring true.

As with the medical cannabis decision, there are those who will immediately expect the legislature or the executive to come to their rescue. Such hopes will be no more realized than the expectation that such intervention would save Terry Schiavo’s life several months ago. For example, Brown’s opinion was used by some senators in opposing her recent elevation to a federal appeals court: she is “too radical.”

So what now? What do we do?

I have already received e-mail urging me to participate in a form of recall petitions against this Gang of Five (John Paul Stevens, Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer), and actually, I would include the sixth, Scalia, who filed a concurring opinion in the medical cannabis case, as well. The usual call, to “Support President Bush” and get in more conservative justices when (whenever) one or two retire, has inevitably been made. Other ideas as well will be bandied about in the next days. In my second part of this article, I’ll look at some alternative actions.

FYI: The three court cases are:

San Remo Hotel v. City and County of San Francisco, 04-340

Kelo v. New London, 04-108

Ashcroft, et al. v. Raich, et al. 03-1454

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[1] NEW news story reference

[2] Baker’s Dozen ™ Tips on Rebuilding Disfunctional Societys, http://libertys-outpost.blogspot.com/, 9 Jun 2005

[3] http://www.cnn.com/2005/LAW/06/06/scotus.medical.marijuana.ap/

[4] http://apnews.myway.com/article/20050620/D8ARHDE00.html: The Supreme Court said Monday that people who lose state lawsuits claiming the government improperly took their property cannot count on federal courts for help. In Monday's decision, the justices ruled against a historic San Francisco hotel that wanted to convert rooms - previously designated for permanent residents - to accommodate tourists. The city had restrictions on hotel changes, as part of an ordinance intended to preserve housing for the poor, disabled and elderly. When the San Remo Hotel was ordered to pay $567,000, it sued in state court and narrowly lost at the California Supreme Court in 2002. There were no harsh words in Monday's 9-0 Supreme Court ruling that found the 62-room hotel could not pursue a federal case because state courts had already addressed all the issues. "This is a big victory for local governments," said Nicole Garnett, a Notre Dame law professor.

[5] http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=44963

[6] http://www.theunionleader.com/articles_showa.html?article=56728