High court takes Fifth, proceeds to ruin it
By HOWARD TROXLER
Published June 28, 2005
The first 10 amendments to the U.S. Constitution are not just window dressing. They are there to protect the citizens against the wicked power of government. History proves that we need them.
Let's take the Fifth Amendment.
You know the most famous part of it. The government can't force a person to give criminal evidence against himself. People who exercise this right are said to be "taking the Fifth."
But that's just for starters. The Fifth also forbids the government from putting a person in "double jeopardy." The government can't just keep putting somebody on trial for the same act over and over until it gets the verdict it wants.
The government can't accuse anybody of a "capital crime," one that carries the death penalty, unless a grand jury of citizens has reviewed the government's evidence and agreed to an indictment.
Wait, there's more: The Fifth Amendment also guarantees "due process of law." The government has to treat each citizen according to the law. The government can't treat people differently, or ignore the law for those people it doesn't like.
A busy paragraph! And yet, there is one more protection, tucked into the last few words of the amendment:
Nor shall private property be taken for public use, without just compensation.The government's power to seize private land was deliberately limited by our Framers. First, there has to be a legitimate "public use," the classic example being a highway right of way. Second, the government has to pay a fair price.
That's why last week's ruling by the U.S. Supreme Court was distressing. By a slim majority, the court wiped away the Fifth Amendment's limits on the government's power to take your land.
The case of Kelo vs. City of New London establishes two crucial points:
(1) The government's claim that it is "promoting economic development" is an acceptable "public use" for taking land.
(2) It is pretty much up to the government itself to decide what "economic development" means. The courts should pay "deference" and "great respect" to the local government's policy.
Good grief!
The ruling was 5-4. The justices in the slim majority were John Paul Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Of these, I would have expected Kennedy or Souter (who, remember, was living as a rural recluse in New Hampshire when he was named to the court) to have more restraint. So we have a so-called "liberal" majority in the weird role of deferring to state and local government.
The four dissenters were Sandra Day O'Connor, Chief Justice William Rehnquist, Antonin Scalia and Clarence Thomas. The last three are usually called the court's "conservative" justices, but there is no more liberal an idea than protecting the rights of citizens against the king.
O'Connor's dissent was strong:
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. ... Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.
Thomas added his own dissent and a nice point. If "public use" means whatever the government says it is, Thomas wrote, then it is a meaningless phrase - and by definition our Constitution is not meaningless. There must be some definition.
Here in Florida, where our weak law already allows local government to declare areas "blighted" to be taken, public officials expressed disapproval of the Supreme Court ruling. The Legislature quickly named a committee to study whether we need to add more protections.
No doubt they are sincere. But the power this ruling gives will seduce them. The U.S. Supreme Court has basically handed a big pile of crack cocaine to every state and local government in America and said, "Try not to get addicted." The court will be forced to modify this ruling in time.
In the meantime, make way for Wal-Mart.