August 2005     

Eminent domain:
Eminent disaster

By Frank Maguire

In totalitarian countries, the notion of "due process" does not mean what it means under the United States Constitution. Under despotic rule, the law does not apply to persons, but to the collective - call it communism, fascism, or what ever other type of plutocracy (where political power, in fact, rather than in law, or Constitutional theory, lies with the wealthy and politically entrenched), there is no due process. The powerful rule, and the citizen is reduced to a mere irrelevant object.

I believe we still have Constitutional Law in the United States. A current majority of our Supreme Court does not. The political Left does not. Most Democrats (though not all), do not. And, an increasing number of accommodationist Republicans don't seem to believe in anything. There is virtually no consistent leadership.

In the Blackwell Encyclopedia of Political Thought, we get this definition of the rule of law. "People are governed by law rather than capriciously or arbitrarily, when all people are punishable only for an established breach of law." If we add to this principle that laws cannot be applied ex post facto - in other words, laws can not be newly-created to cover any alleged past offense - we end up with an interesting situation, vis a vis eminent domain.

In the recent Kelo vs. City of New London (CT) decision, what did the majority do? In dissent of the majority (5-4), Justice Clarence Thomas wrote that the Supreme Court majority has rewritten the Public Use Clause of the 5^th Amendment to the Constitution. The 5^th Amendment implies a very narrow definition of "public-use." The majority Court has decided that any government, or quasi-government agency can determine what public-use means. By their own definition of public-use, every taking of private property from one legal owner, to give to a new "owner" of their choice, amounts to public-use. If you own a business that produces so-many jobs and so-much taxes, the government, or any associated agency, can take your property if they claim it is economically advantageous to displace your business with one that produces more jobs and higher tax revenue. This, friends and neighbors, is governmental grand theft. It is a crime. It is un-Constitutional. It is worthy of rebellion.

That which is defined as rule of law is fixed law, not arbitrary, ex post facto. Every standard of the rule of law has been superseded by the communalist court majority, who superimposed their capricious ruling upon the Constitution.

Not only has this presumptuous majority nullified the 5^th Amendment, without Congressional assent, or a vote of the citizens, they have punished property owners without due process. It is eminently clear that the Constitution and 5^th Amendment protects the individual. It is the individual, alone, who requires due process. The result of due process might affect the collective, but it must start with the individual citizen.

And, since the owner of a property is being punished (only the person can determine what is punishment), it is also clear that he is being punished by the superimposition of an ex post facto ruling by a branch of government, whose legal, Constitutional function is to interpret the Constitution, not create law. In the majority opinion, the rule of law is disregarded. Remember, the rule of law states that law breakers are "punishable only for an established breach of law." The established law is (was) that written into the 5^th Amendment. The legal owner of property who has not committed a crime that allows for seizure of his property, has not breached an established law. They have had imposed upon them an order of the court that has created law, ex post facto.

Let's take a look at a 2004 decision by the Michigan Supreme Court. In an article entitled Eminent Domain, a Court Repents, by Bill Sizemore (August 12, 2004, NewsWithViews.com) Sizemore related the behavior of the Michigan courts. In 1981, in a case called Poletown Neighborhood Council v. City of Detroit, the Michigan court decided that Detroit had lawfully used its power of eminent domain to condemn nearly 500 acres of residential and business property, and to then sell that land to General Motors to build a new auto plant.

Sizemore writes,

"Located on the 465 acres of land, which was forcibly seized by the city and transferred to General Motors, were 1,400 homes and more than one hundred businesses. Also, several churches were required to vacate, some forcibly, with armed police officers dragging protesting parishioners away.... Such unconscionable abuse of government power has become commonplace across America."

Thousands of persons were punished without due process, and having breached no established law. The government disregarded the historically accepted rule of law.

But something American happened in Michigan. On July 30, 2004, in a

"...unanimous seven to zero decision, the Michigan Supreme Court reversed itself.... In a case known as County of Wayne v Hathcock, the Michigan Supreme Court overturned its own precedent, acknowledged the mistake it had made 23 years earlier, and declared that taking private property to resell it to another private party is not public-use, after all."

"The court decided that spurring economic development and enhancing tax revenues were not really 'public uses' and, therefore, not legitimate or Constitutional grounds for taking private property. The justices said in their written opinion, that the earlier decision in the Poletown case was a 'radical departure from fundamental Constitutional principles.'"

The justices also wrote:

"We overturn Poletown in order to vindicate our Constitution, protect the people's property rights, and preserve the legitimacy of the judicial branch as the expositor, not creator of fundamental law." (Sizemore)

There is no doubt that in Kelo v. City of New London, Supreme Court Justices Stevens, Kennedy, Breyer, Ginsberg, and Souter have colluded in a capricious and arbitrary treachery. They, officers of the court, sworn to uphold the rule of law, have broken the law, and created their own domain of eminence. This is a crime against the Constitution, and the American people.

Justice Sandra Day O'Connor provided her dissenting interpretation of the unlawful action of the court majority:

"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

In the majority opinion, we have a case of classical, creeping fascism. The individual is made subservient to the commune. The community is no longer an accumulation of private citizens with inalienable Constitutional rights, including the right to property; it is a collective body of subjects, whose rights have been surrendered to collectivist plutocrats. Classical fascism!

How will this play out in Oregon? It can be predictive to examine the Oregon Revised Statues - Chapter 534 Oregon Laws 2003. In the Act, HB (House Bill) 3370, "relating to the consolidation of laws governing eminent domain - creating new provisions," which amended Oregon's eminent domain laws, we read such as the following:

"...'Public entity' includes the state, a county, a city, a consolidated city-county as defined in ORS 199.705(1), a district, public authority, public agency, and any other political subdivision or public corporation in the state when acquiring real property, or any interest therein, for public use."

Then, in Section 8 ORS 281.505 is added: "...'municipal corporation' includes any county, city, port, or other public or quasi-public corporation."

Given the new authority provided by the Supreme Court decision, any of the above bodies can, in the name of an alleged "public use," take private property by eminent domain or by condemnation, even when the condemnation has nothing to do with blighted areas. Every level of government, and every quasi-government agency, including the Port of Portland, can seize private property. Or, so it would seem. But, what does the Oregon Constitution say about the matter? And, how does it relate to HB 3370?

In Article 1 (Bill of Rights) Section 18:

"Private Property or Services Taken for Public Use: Private property shall not be taken for public use, nor the particular services of any man demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered; provided, that the use of all roads, ways, and waterways necessary to promote the transportation of the raw products of mine, or farm, or forest, or water for beneficial use or drainage is necessary to the development of the welfare of the state, and is declared a public use."

Then, in Section 21:

"Ex Post Facto Laws: laws impairing contracts; etc: No ex-post facto law, or law impairing the obligation of contracts shall ever be passed, nor shall any law be passed, the taking effect of which shall be made to depend on any authority, except as provided in this Constitution..."

Later, in Article XI, Section 4:

"Compensation for property taken by corporation: No person's property shall be taken by any corporation under authority of law, without compensation being first made, or secured in such manner as may be prescribed by law."

In the Oregon Constitution, "public use" is very narrowly defined, and specific. There is no broad, sweeping reference to the taking of private property for any and every use the government defines as public. Any statute that changes the Constitution does so illegally. The Constitution, to be changed, must be amended and revised. (Article XVII, Section 1. Method of Amending Constituion, and Section 2. Method of Revising Constitution.)

The process is lengthy, and I won't go into it here, other than to say that a revision of the Constitution requires that it must be agreed to by two-thirds of the members of each House, then referred to the Secretary of State, and presented to the people for a popular vote.

My question is, does the Kelo v. City of New London decision by a majority of the Supreme Court empower Oregon to revise the meaning of "public use?" Will the decision allow ORS 199.705 (1) to take private property for any definition of public-use, and sell that property to other private entities - without the necessity of revising the Oregon Constitution, as directed by law? Will the Supreme Court decision empower any level of government, and every quasi-governmental agency to seize private property, under the excuse that it is to be seized for "public use?"

In East Multnomah County, there is a battle over the old Alcoa Property. The cities of Fairview, Wood Village, and Troutdale are attempting to assert their rights, and the rights of their citizens, against an attempt by the State and the Port of Portland, a quasi-governmental corporation with taxing authority, to impose an inter-modal freight yard, at the scenic gateway to the Gorge. Does the Kelo decision give the Port a neutron bomb to use against the residents of the aforementioned cities? Can these small communities successfully contend with the axis of the Federal Government, State Government, and Quangos like the Port of Portland?

The odds are not good. Unless...

Unless the citizens make themselves aware of what is at stake! Only the people can stop State thievery. Remember the old axiom, "The people get the government they deserve."

If you really believe you should not become victims of so-called "public-private cooperation," you must act. Now! Individually and collectively!

Frank Maquire is the publisher of The Liberty Tree in Fairview, Oregon.