Wednesday, June 29, 2005

Kelo vs New London: Eminent tyranny

In Kelo vs. New London the U.S. Supreme Court has ruled that from the moment of its decision forward it shall be lawful for agents of the government to seize homes from citizens and to force those citizens to sell their property to commercial interests.

Before the court crafted this decision -- out of snakes and snails and puppy dog’s tails -- eminent domain could be invoked by the federal or municipal government only when the seizure of property was necessary to satisfy a legitimate state interest. After Kelo agents of our republic’s tripartite government will be authorized to seize my home and force me to sell it to satisfy a commercial rather than a public interest.

From the point of view of constitutional interpretation, this is the most harmful U.S. Supreme Court decision in my lifetime. And if there is anything that can arouse the citizens of our sleepy republic to march on Washington and demand a repeal of this decision and a restoration of our constitutional liberties, it is this God-awful decision. Ben Franklin might have had such anti-republican assaults in mind when he said during the continental congress that produced both the U.S. constitution and the American Republic, “We have given you a republic – if you can keep it.”

“Takings” of property, usually by conquest, and the granting of charters, usually by monarchs, the presumptive “owners” of land taken in conquest, were common characteristics of the of the pre-revolutionary colonial period. The state of Massachusetts, and later Connecticut, was given by charter by the king of England to a corporation.

When agents of the king sought to void Connecticut’s charter by seizing it, the colonials hid in an oak tree the document that granted “rights” to the settlers of the state. But, even then, the notion of rights as liberties conferred on the governed by a king was already in disarray. To the founders of the American Republic, natural rights were rooted in the nature of man – God given and therefore, in Jefferson’s term “imprescriptable.” What God’s seal had impressed in the very nature of man not even a king could take away.

Having declared their break from England, the people of America, Jefferson said in the Declaration of Independence, had assumed “among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them.”

Among the“self evident truths” mentioned by Jefferson are the following: “that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness.”

The right to happiness, much misunderstood by modern hedonists, would have been understood by Jefferson’s contemporaries as the right to have, to hold, to enjoy and to dispose of property. The end of the feudal era and the beginning of the modern age begins with assertions made by the heirs of England’s Great Revolution that a man’s home is his castle, secure from attack by both kings and commoners because the right to own and freely dispose of property is rooted in the nature of man. The whole point of laws and constitutions, as they were understood in the post-feudal period, was to secure such rights.

“To secure these rights,” Jefferson said in the Declaration, “governments are instituted among men, deriving their just powers from the consent of the governed.” Against corrupt governments, Jefferson asserted a right of revolution: “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

Acting very much like a tin-pot god, the U.S. Supreme Court now has granted an unconstitutional “right” to states, acting very much like tin-pot kings, to confer the state’s powers of eminent domain on development corporations so that the corporations may force citizens of this country to sell their property to commercial interests favored by the state and the corporation.

To anyone who knows the history of the American revolution, this is the very definition of tyranny, and it provides an unwelcomed answer to Ben Franklin’s challenge: "We have given you a republic, if you can keep it."

In the post-modern period, it seems less and less likely that we can keep the republic safe from the assaults made by the U.S. Supreme Court on our God given, imprescriptable natural rights.

A revolution of some kind would seem to be in order. The only question is: Where in this anemic republic will we find a Jefferson or a Franklin to lead it?

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