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Tuesday, June 28, 2005 | Never have I been as outraged – and depressed – with government as I am with the recent U.S. Supreme Court decision condoning the taking of private property for private use.
During my 11-year term as a professor of real property law, my law students and I frequently discussed the cases that proceeded to erode the mandate of the Fifth Amendment – that government shall take no private property for public use without just compensation. I’d like to share, in non-legalese, some of these thoughts, the history that led up to the court’s ruling and what we can expect if we sit complacently on our civil rights.
The undermining of the Fifth Amendment began when the courts reinterpreted the word “public” to mean “governmental” and the word “use” to mean not just a measurable land use but an amorphous “purpose.” Condemnation was thus permitted for a governmental building, not just a public park or road. From these decisions, our legislatures, with the approval of our courts, then proceeded to destroy the mandate of our 10th Amendment -that government shall only legislate to benefit the public health, safety and welfare. It was a simple matter. All they had to do was interpret the phrase “public welfare” to mean the “public economy” and thus the “governmental tax base.” The rationale was that these constitutional erosions were authorized by the public under the theory that we have, at all times, government of, by and for the people.
But this was not the most serious and insidious erosion of our Constitution. Until the U.S. Supreme Court ruling of June 23, the worst erosion was the shameless violation of our 14th Amendment which prohibits legislation that results in discrimination based on wealth or poverty. How often have we observed the condemnation of whole areas in our city due to “economic blight”? How often have we heard the local legislative pronouncement of “urban blight,” a judgment call made without fixed and equitable standards, which discriminates against area residents and small business owners because of their collectively small bank accounts.
Unfortunately, I don’t believe that we’ve yet seen the worst. Taking private property for private use – your business or my home – won’t hold a candle to the day when we see private personal property as well as real property – your automobile and my cat- taken because they constitute blights to our neighborhoods. And just wait until government sees no need to compensate us for either the personal or real property they take. Indeed, it already does this by reinterpreting the word “taking” to mean mere “regulation,” for which no compensation need be paid. Prime examples of regulation are downzoning or removing trees that allegedly obstruct the views of drivers.
For the time being, it seems that government would prefer that we keep our mouths shut, that we relinquish our First Amendment rights to freedom of speech, press, religion, and certainly, our right to petition government. If we speak out, our legislators might retaliate and take whatever they will from us, even without unjust compensation.
We are the public, the people, the government, and we must preserve our property rights in every way we can. We cannot permit our state to adopt these new federal standards. We cannot allow our county and city to deprive us of our right to life, liberty and property by following suit. We cannot afford to look elsewhere when we see the camel’s nose poking through our neighbor’s tent, lest our own campground be overrun and ruled by camels.
Abbe Wolfsheimer Stutz is a former San Diego city councilmember and law professor.