Private Property v. Government: Vigilance Required!

COEUR D’ALENE, Idaho – January 3, 2015. The importance of taking a long-term view regarding government versus private property is highlighted again by recalling the 2009 unveiling of plans by Pfizer Corporation to close its New London, Connecticut operations and consolidate some of them in Groton, Connecticut facilities, coupled with Pfizer’s 2011 decision to move the balance of New London operations into a new research center in Cambridge, Massachusetts. Pfizer Corporation got its way against private property homeowners in New London in 2005: the transfer from those private property owners to the new corporate Pfizer private property owner was facilitated by the City of New London, the courts of the State of Connecticut, and the U.S. Supreme Court. Now that Pfizer is gone from New London, Connecticut, what we are left with is displaced homeowners like Susette Kelo, and the final nail in the coffin to a significant feature of the Fifth Amendment to the U.S. Constitution. No one can say that the destruction of individual liberty is not moving forward by leaps and bounds. A short review of the Kelo facts may help us pull back and take a longer view.

In a 2009 New York Times article, the trials and tribulations of private property homeowners in New London, Connecticut were highlighted, including those of lead plaintiff Susette Kelo. If you can reach back through the mountains of information overload you have suffered since 2005, you will recall “[i]n a 5-to-4 decision, the [U.S. Supreme Court] ruled that it was permissible to take private property and turn it over to developers as part of a plan to bolster the local economy.” (Pfizer to Leave City That Won Land-Use Case, N.Y.T., 11-12-09). Kelo was the culmination of a string in decisions in which the U.S. Supreme Court finally demolished the last clauses of the U.S. Constitution’s Fifth Amendment, which states, “. . . nor shall private property be taken for public use, without just compensation.” Kelo v. New London, 545 U.S. 469 (2005); citing U.S. Const. 5th Am. That was almost one decade ago.

In the beginning of the Republic,”public use” meant actual use by the “public,” which was defined as the federal government only, before the text of the Fifth Amendment was applied to the States by that Court using a 20th-century doctrine called “incorporation.” The Incorporation Doctrine applied much of the original Bill of Rights, which previously only applied to the federal government, to the States. When people saw their liberty clearly, and there were limits to the federal power — because “We the People” insisted on it — “public use” meant actual governmental uses for its direct operations like forts, armories, and other primarily military facilities. Now that the “takings clause” of the Fifth Amendment applies to the States and its original meaning has been destroyed, the growth of local, state, and federal government now grow unimpeded. Does anyone really doubt this anymore?

The syllabus to the Kelo decision noted, “the Court has defined [the concept of ‘public purpose’] broadly, reflecting its longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power. Berman, 348 U.S. 26 [1954]; Midkiff, 467 U.S. 229 [1984]; Ruckelshaus v. Monsanto Co., 467 U.S. 986 [1984].” In affirming the Connecticut decision ousting the New London private property owners (268 Conn. 1, 843 A. 2d 500), the Kelo Court gave America a dose of government power from which its free citizens may never recover.

It is very important to view the growth of government power in terms of decades, and not only through a lens appreciative of political details this or last year. For example, people have grown unfortunately comfortable with Social Security, leaving their retirement planning and income largely to the federal government instead of planning for themselves. However, instead of the original 10 to 1 ratio of workers to retirees available in the 1930s, we are now faced with a 3 to 1 ratio, but nobody blinks an eye. The politicians dance around talking about “lockboxes” and shared sacrifice while the old people wring their hands insisting they have earned a fat slice of a worker’s paycheck that was just generated last week! How can our proud “greatest generation” admit that they are now simply welfare recipients, and the blood they shed in World War II, Korea, and Vietnam was shed only to enhance government power at home. Can America learn from this sad history?

In today’s grim world of government provisioning of life’s basic needs that retiree cannot even receive Social Security benefits unless that retiree also gives up individual responsibility for medical care and become a welfare recipient of Medicare. Now the federal government is responsible not only for our retirement income, but also our medical care during retirement. One does not even have to recall the Veterans Administration scandal of 2014 to feel like the federal government is choking off the lifeblood of a free country and laughing all the way to the throne of increased federal power. Now we hear calls in the States like Idaho to expand Medicaid, as if the receipt of federal funds into the States is some kind of a free good, and that there is no liability to individuals involved in the economic system — such as liability to individual freedom. “Think of the new jobs, man!” This is the new cry of the utopianists when they want to expand social welfare and dispense with a proud heritage of individual liberty.

In the long run, the government grows bigger and bigger, only a few undertake to cut it back, and the liberties we once enjoyed, even five years ago, are under increasing assault by a plethora of new rules, regulations, and other mandated government requirements. In 2015, the government planners have run amok, and the people anxiously await its “expert” direction, hesitant to quibble with its sheer power for fear of individual retaliation. Even when a private landowner wants to use his or her own property, the government will enter into a “partnership” to “assist” with that private planning process, and in that way with intricate regulations abounding, the government’s plan for the use of private property moves forward. Many people believe individual private property rights now boil down to a situation where the government says, “[i]f you bring the money, we will tell you what you can do.” The police power is thoroughly unbound, and the U.S. Supreme Court defers.

Rome was not built in a day, and neither will America be torn down in a day. Astute and alert observers must consider the wave of encroachment on liberty over decades to see the true impact. ~~ ABM