Government Can Take Your Home if Someone Important Wants It

It is alleged that:

"The Fifth Amendment to the Constitution, made applicable to the States by the Fourteenth Amendment, "

Can anyone in this forum provide documentation from the debates during which time the Fourteenth Amendment was framed and ratified which establishes there was a prevailing consensus of agreement that by the adoption of the Fourteenth Amendment to the Constitution, the Fifth Amendment was to henceforth be made applicable to the states by the Fourteenth Amendment?

Waiting Debra dear for you to prove this myth.


JWK

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

You can continue to reside in your make-believe world that the due process clause of the Fourteenth Amendment has no meaning other than the one that YOU ascribe to it--or you can join the real world where the rest of us have to deal with the real law.

Can anyone in this forum provide documentation from the debates during which time the Fourteenth Amendment was framed and ratified which establishes there was a prevailing consensus of agreement that by the adoption of the Fourteenth Amendment to the Constitution, the Fifth Amendment was to henceforth be made applicable to the states by the Fourteenth Amendment?

Waiting Debra dear for you to prove this myth.

It is impossible for a written Constitution itself or the people who debated or adopted the clauses therein to set forth all possible situations, circumstances, cases, or controversies that may conceivably arise and determine a rule of decision in advance

Can anyone in this forum provide documentation from the debates during which time the Fourteenth Amendment was framed and ratified which establishes there was a prevailing consensus of agreement that by the adoption of the Fourteenth Amendment to the Constitution, the Fifth Amendment was to henceforth be made applicable to the states by the Fourteenth Amendment?

The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen's Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources "cast some light" they are not sufficient to resolve the problem; "[a]t best, they are inconclusive.

The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among `all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect." Brown v. Board of Education, 347 U.S. 483, 489 (1954). See also Strauder [388 U.S. 1, 10] v. West Virginia, 100 U.S. 303, 310 (1880). We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished. McLaughlin v. Florida, 379 U.S. 184 (1964).

As a matter of fact, there is an abundance of documented evidence the amendment was specifically intended to apply in a very narrow area…to prohibit state authorized discrimination, unequal law, based upon “race, color, or previous condition of slavery…”

As Rep. Shallabarger, a primary supporter of the Fourteenth Amendment stated when it was being debated:


“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery..It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.”

(see Rep. Shallabarger, Congressional Globe, 1866, page 1293)

The residue of the [first] section [of the proposed civil rights bill] provides that--

"[There shall be no discrimination in civil rights or immunities among citizens of the United States in any State or Territory of the United States on account of race, color, or previous condition of slavery.] And such citizens of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subeject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding."


Now, sir, these provisions, first, prohibit its discrimination in securing the civil rights of citizens on account of race, color, or previous condition of slavery. Second, that these, without regard to such race or condition, shall have the same right to contract, convey, sue, testify, inherit, and to claim benefits of the laws protecting person and property as white citizens, and shall be subject to the same penalties, and this notwithstanding any other laws.

Now, Mr. Speaker, if this section did in fact to confer or define or regulate these civil rights, which are named by the words contract, sue, testify, inherit, etc., then it would, as it seems to me, be an assumption of the reserved rights of the States and the people. But, sir, except so far as it confers citizenship, it neither confers nor defines nor regulates any right whatever. Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition in slavery.

If it undertook, for example, to say that a married woman or child under age of intelligence should testify, that would invade the rights reserved to the State. But, sir, it does nothing like that. It permits the States to say that the wife may not testify, sue, or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of these enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality. Your State may deprive women of the right to sue or contract or testify, and children from doing the same. But if you do so, or do not so as to one race, you shall treat the other likewise. It does not prohibit you from discriminating between citizens of the same race race, or of different races, as to what their rights to testify, to inherit, etc., shall be. But if you do discriminate, it must not be "on account of race, color, or former condition of slavery." That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel.

[NOTE: In JWK's version of Shellabarger's statements, JWK omitted the quotation marks around the phrase "on account of race, color, or former condition of slavery" to conceal the fact that Shellabarger was quoting language directly from the proposed civil rights act. JWK wanted you to believe, through his many omissions, that Shellabarger was speaking about the Fourteenth Amendment--and of course, it would have been impossible for Shellabarger to quote language that didn't exist.]

Self-evidently this is the whole effect of this first section [of the proposed civil rights bill]. It secures--not to all citizens, but to all races as races who are citizens--equality of protection in those enumerated civil rights which the States may deem proper to confer upon any races. Now, sir, can this Government do this?

Admitting, therefore, that formerly the States were not prohibited from infringing any of the fundamental privileges and immunities of citizens of the United States, except [83 U.S. 36, 122] in a few specified cases, that cannot be said now, since the adoption of the fourteenth amendment. In my judgment, it was the intention of the people of this country in adopting that amendment to provide National security against violation by the States of the fundamental rights of the citizen.

The first section of this amendment, after declaring that all persons born or naturalized in the United States, and subject to its jurisdiction, are citizens of the United States and of the State wherein they reside, proceeds to declare further, that 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws;' and that Congress shall have power to enforce by appropriate legislation the provisions of this article.

Now, here is a clear prohibition on the States against making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States.

If my views are correct with regard to what are the privileges and immunities of citizens, it follows conclusively that any law which establishes a sheer monopoly, depriving a large class of citizens of the privilege of pursuing a lawful employment, does abridge the privileges of those citizens.

The amendment also prohibits any State from depriving any person ( citizen or otherwise) of life, liberty, or property, without due process of law.

In my view, a law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law. Their right of choice is a portion of their liberty; their occupation is their property. Such a law also deprives those citizens of the equal protection of the laws, contrary to the last clause of the section.

The constitutional question is distinctly raised in these cases; the constitutional right is expressly claimed; it was [83 U.S. 36, 123] violated by State law, which was sustained by the State court, and we are called upon in a legitimate and proper way to afford redress. Our jurisdiction and our duty are plain and imperative.

It is futile to argue that none but persons of the African race are intended to be benefited by this amendment. They may have been the primary cause of the amendment, but its language is general, embracing all citizens, and I think it was purposely so expressed.

The mischief to be remedied was not merely slavery and its incidents and consequences; but that spirit of insubordination and disloyalty to the National government which had troubled the country for so many years in some of the States, and that intolerance of free speech and free discussion which often rendered life and property insecure, and led to much unequal legislation. The amendment was an attempt to give voice to the strong National yearning for that time and that condition of things, in which American citizenship should be a sure guaranty of safety, and in which every citizen of the United States might stand erect on every portion of its soil, in the full enjoyment of every right and privilege belonging to a freeman, without fear of violence or molestation.

Call it the post-Kelo wave.

Just five weeks after the U.S. Supreme Court upheld the use of eminent domain to seize private property for economic development, more than half of the states have introduced legislation to thwart potential abuses.

Since the June 23 ruling in Kelo v. City of New London, 125 S. Ct. 2655, lawmakers in 28 states have introduced more than 70 bills. But while most lawmakers agree on the nature of the problem, their solutions vary from state to state. . . .

Namesake Susette Kelo, who owns a single-family house with her husband, learned she would owe in the ballpark of 57 grand. "I'd leave here broke," says Kelo. "I wouldn't have a home or any money to get one. I could probably get a large-size refrigerator box and live under the bridge."

At its core, the right to due process reflects a fundamental value in our American constitutional system. . . .

. . . It is to courts, or other quasi-judicial official bodies, that we ultimately look for the implementation of a regularized, orderly process of dispute settlement. Within this framework, those who wrote our original Constitution, in the Fifth Amendment, and later those who drafted the Fourteenth Amendment, recognized the centrality of the concept of due process in the operation of this system. Without this guarantee that one may not be deprived of his rights, neither liberty nor property, without due process of law, the State's monopoly over techniques for binding conflict resolution could hardly be said to be acceptable under our scheme of things. Only by providing that the social enforcement mechanism must function strictly within these bounds can we hope to maintain an ordered society that is also just. . . .

. . . the judicial proceeding becomes the only effective means of resolving the dispute at hand and denial of a defendant's full access to that process raises grave problems for its legitimacy. . . .

. . . Resort to the judicial process by these plaintiffs is no more voluntary in a realistic sense than that of the defendant called upon to [401 U.S. 371, 377] defend his interests in court. For both groups this process is not only the paramount dispute-settlement technique, but, in fact, the only available one. . . .

. . . Prior cases establish, first, that due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard. Early in our jurisprudence, this Court voiced the doctrine that "[w]herever one is assailed in his person or his property, there he may defend," Windsor v. McVeigh, 93 U.S. 274, 277 (1876). See Baldwin v. Hale, 1 Wall. 223 (1864); Hovey v. Elliott, 167 U.S. 409 (1897). The theme that "due process of law signifies a right to be heard in one's defense," Hovey v. Elliott, supra, at 417, has continually recurred in the years since Baldwin, Windsor, and Hovey. 3 Although "[m]any controversies [401 U.S. 371, 378] have raged about the cryptic and abstract words of the Due Process Clause," as Mr. Justice Jackson wrote for the Court in Mullane v. Central Hanover Tr. Co., 339 U.S. 306 (1950), "there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." Id., at 313. . . .

. . . Our cases further establish that a statute or a rule may be held constitutionally invalid as applied when it operates to deprive an individual of a protected right although its general validity as a measure enacted in the legitimate exercise of state power is beyond question. Thus, in cases involving religious freedom, free speech or assembly, this Court has often held that a valid statute was unconstitutionally applied in particular circumstances because it interfered with an individual's exercise of those rights. . . .

To require any property owner to pay retroactive rent in the event their judicial challenge is unsuccessful would effectively penalize the exercise of rights guaranteed by the Constitution and CHILL the exercise of rights with respect to all others who would dare to challenge the constitutionality of a property taking in the future.

In this case, the plaintiffs who own homes and property in the Fort Trumbull Development area seek injunctive relief to prevent the taking of their homes by eminent domain. These plaintiffs do not want compensation for their property, as must in any event be provided when property is taken by the state; they want to remain in their homes and argue that the issue of fair compensation does not even arise. . . .

* * *

Public Use

Having tried to address these preliminary matters, the court will now address the central issue in this litigation.

At the heart of this case is the question of whether it can be said that the plaintiffs' properties have been taken for a so-called public use. Both the state and federal constitution demand that the power of eminent domain be exercised only for a public use. If the taking is not for a public use, then the question of appropriate compensation does not arise since no amount of compensation can be a constitutional substitute for the right of the citizen to remain in his or her home or business free of government trespass on that right. . . .

WASHINGTON -- The Supreme Court, given a chance to revisit a heavily criticized ruling, refused Monday to reconsider its decision giving local governments more power to seize people's homes for economic development.

So contentious was the court's narrow 5-4 ruling in the so-called eminent domain case earlier this year that some critics launched a campaign to seize Justice David Souter's farmhouse in New Hampshire to build a luxury hotel. Others singled out Justice Stephen Breyer's vacation home in the same state for use as a park.

Both Souter and Breyer voted on the prevailing side. Justice Sandra Day O'Connor, who did not, sharply criticized her colleagues at the time. She said in a minority opinion that the ruling favored the well-heeled over the less fortunate.


In addition, legislators in some 25 states are considering changing their eminent domain laws to soften the impact.

Justices did not comment Monday in refusing to reconsider the case, which had been expected because requests for a reconsideration of rulings are rarely granted.

O'Connor, whose decision to retire created the opening that Washington lawyer John Roberts now seeks to fill, wrote in her angry dissent of June that "the specter of condemnation hangs over all property."

Justice John Paul Stevens wrote the majority opinion and defended it last week in a speech in Las Vegas. The ruling was legally correct, he said, because the high court has "always allowed local policy-makers wide latitude in determining how best to achieve legitimate public goals."

But Stevens said he had concerns about the results.

"My own view is that the allocation of economic resources that result from the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials," Stevens told the Clark County Bar Association.

Legal experts had said they did not expect the court's ruling, involving an economic development project in New London, Conn., to prompt a rush to claim homes.

Stevens said that "the public outcry that greeted (the ruling) is some evidence that the political process is up to the task of addressing such policy concerns."