June 28, 2005

What now? (Part I – Consequences) Click here if you missed part one.

Now that the Supreme Court has announced an end to the concept of owning property - such ownership is solely at the whim of the government (federal/state/local/tribal) - what do we do?

If we lovers of liberty choose to do nothing, we have undercut the fundamental right recognized within both Common Law and the American legal system to this point. While we tend to divide rights between "economic" and "personal," all personal rights stem from the concept of ownership: that is, we own ourselves: our bodies, our lives, our minds, our souls, and the labor of our hands (and minds). Our right to worship as we please (instead of as the State dictates), our right to speak freely, to keep and bear arms, all stem from the concept that we are NOT slaves, that we can own ourselves and other things. Now that expropriation is based upon the decision of as few as three county commissioners or town board members (or perhaps, indeed, a single "County Executive" or Mayor or Town Manager or even an appointed, unelected bureaucrat) as to whether it is in the public interest to take our property from us, the entire concept of property is no more stable or sacrosanct in the USA than it is in Cuba, Zimbabwe, or Somalia.

As time goes on, if we do nothing, the current slow whittling away of our liberties will pick up pace, and the rule of men, rather than of law, will become more evident even to the most casual observer. It will not be overt, to be sure; it will continue to be subtle - there will be no branding and chaining of slaves, no widespread confiscation of property - or at least of real property. But consider, if a town or county decides that it is a "public good" that all weapons owned by residents of their community are best owned by the City? Nothing prevents anyone from owning one, or buying a replacement, but at a single point, the City has a MANDATORY buy-back program in effect. The Supreme Court has said that they will not interfere with LOCAL decisions as to what defines "public good." Yes, this is an exaggerated situation, but I am sure we can all think of other, less extreme, examples.

So doing nothing seems to be a non-starter. But what can we do?

It is relatively simple to draft up and begin circulating a "recall petition" - not that the federal government (unlike many states) HAS any provision for recall, except for that rusty and dull weapon called "impeachment." The petition would probably take the form of a petition to your district's Representative, which under Article I, Section 3 of the Constitution, can bring a bill of impeachment against Judges, which are then tried by the Senate. The standard for Judges is very simple, as found in Article III, Section 1: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour." (Sixty-one federal judges or Supreme Court Justices have been investigated for impeachment, of whom thirteen have been impeached and seven convicted.) But there is nothing to force any Representative to accept such a petition, and unless the number of signatures on a petition to a specific Representative starts to approach the number of people that voted for him or her at the 2004 election (probably somewhere around 200 THOUSAND signatures), it is unlikely that it would persuade someone to vote for a bill of impeachment if they were otherwise not inclined to, and those who would vote for such a bill are unlikely to need the petition to do so. With 435 Representatives, that would take something on the order of twenty MILLION signatures: about ten percent of the electorate. It COULD be done - and probably for only about 50 million dollars, and wouldn't mean a thing.

As I mentioned in part 1 of this article, many are repeating their cry for "appointing more conservative justices" as a way to "reform" the Supreme Court. In reality, this method, even if it were surefire, would take years to complete - even without the usual fun and games in the Senate for confirmation hearing. For one thing, the two members of the current Court most likely to retire soon are two of the Justices who were AGAINST these three horrible decisions: Chief Justice Renquist and Justice O'Connor; together with Justice Thomas, they are the only consistent "strict constructionists" on the Court. And they are far from perfect when it comes to recognizing traditional American freedoms. Clarence Thomas is arguably the most loyal to the Constitution, and it is virtually a certainty that President Bush or some future president could appoint someone as strict-constructionist as Thomas. Yes, Janice Rogers Brown is frequently mentioned, but I have my doubts that she would be confirmed, given the ineptness of Senate Republicans. The chances of getting six Justices to support the original intent of the Constitution and restore these and other freedoms to the people (by taking them away from government) are probably astronomically low.

So, could Bush pull an "FDR" and try to "pack" the Supreme Court by increasing the number from 9 to 15 justices, and thus be able to appoint six (or even eight) new people? Again, theoretically possible (the Constitution does not specify the number), it is hard to imagine how he could get such a law through Congress, and almost as hard to imagine he could then shepherd 6 to 8 new appointments through the Senate.

What is left? Theoretically, another "legislative solution" would be to remove certain types of cases from the jurisdiction of the Supreme Court - although this would not apply to decisions already published, like these. The Constitution, Article III Section 2 says, "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." This, however, has the same problem as all the other legislative solutions: no way it will ever pass - all 535 Members of Congress are scared silly of the idea (well, almost all - a few might be willing). But it would also open a huge can of worms as to what WOULD be removed from their power.

Also (you can predict this almost as surely as predicting the sun's rise) there are already calls for constitutional amendments (or even for a constitutional convention) to override the Court, as is being attempted (yet again) for flag-burning; as is proposed for prohibiting same-sex marriage, and for various and sundry other problems caused by the Courts. Presumably, this amendment would attempt to define "public use" so as to limit this "inherent power" of all levels of government. Exactly HOW such a definition would be crafted, I do not know; nor do I know how such a definition would be enforced, except through the very courts who have broadened the current common definition of "public use" beyond all reason. It could return to the old (pre-1916) idea that "public use" was synonymous with "use by the public" but that would be unlikely to pass - the definitions of "public interest" or "public welfare" are equally vague and capable of being defined as any bureaucrat or politician wishes. It might also attempt to prohibit transfer of any land or property taken "for public use" to any private entity or corporation[8], or to require that anything taken be returned to the original owner (or heirs) when no longer used for the original purpose. But none of these solutions would seem to be workable, or even likely of passage.

In the same way, I think we can reject ANY legislative solution as being feasible or likely: forget the letter-writing campaigns, the phone-trees, the e-mail lists, the speaking-up at constituent meetings, and any of that kind of thing. Members of Congress are part of the very large group that will indeed continue to benefit, directly or indirectly from "effectively removing 'public use' from the Constitution" - just as indeed is most of the judicial branch of government, regardless of level, and the state and local legislative and executive branches.

Can we do an "Exodus" - whether it is to the New Hampshire Free State, the Wyoming Free State, or some place entirely outside of the United States? Well, that might be a possibility. Georgia claims that it, for example, has sufficient protections against this kind of abuse in their own Constitution that they don't need the Federal one. I don't know about NH's founding document, but the Wyoming Declaration of Rights has this to say: "97-1-032. Eminent domain. Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, and for reservoirs, drains, flumes or ditches on or across the lands of others for agricultural, mining, milling, domestic or sanitary purposes, nor in any case without due compensation," and "97-1-033. Compensation for property taken. Private property shall not be taken or damaged for public or private use without just compensation." Is that enough? I don't know. And we can't all live in Wyoming (or Wyoming and New Hampshire) and keep liberty going while all the rest of North America becomes one big gulag. I suspect the only way Wyoming could keep even that much constitutional protection without ultimately, repealing Article 21 of its constitution, and probably Section 37 of Article 1. The chances of being able to migrate to another country and change its institutions to allow the necessary freedom are probably worse than the chances of any of the other alternatives we've looked at working.

We appear to be in the situation of the old gambler, of which one of my revered trade school professors said, "We can't win, we can't break even, and we can't get out of the game."

So what do we do? In the next part of this article, we'll look at the answer to the gambler's dilemma.

Footnotes:

[8] For one thing, this is childishly easy to work around by "leasing" or "permitting" the use of the stolen property to whomever they wish, just as the Navajo do today.

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Part 2

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What now?
(Part I – Consequences)

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