Friday, June 24, 2005


. . . . nor shall private property be taken for public use, without just compensation.
These words are found in the 5th Amendment to our Constitution. These words became part of our written Constitution on December 15, 1791 because the procedure specified in Article V for amending our Constitution was followed:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths therefore, as the one or the other Mode of Ratification may be proposed by Congress . . . .
These words in the 5th Amendment became part of our Constitution because a supermajority vote in both houses of Congress approved adding these words AND because a supermajority of states approved adding these words.

Yesterday, the Supreme Court released its opinion Kelo et. al. v. City of New London et al. In this opinion the Supreme Court says that a city can take private property for the purpose of having a developer build a new shopping mall, and that such a taking of private property does not conflict with these words of the 5th Amendment. In other words, the Court is saying that government can take private property from Mr. Smith and give it to Mrs. Jones, as long as government pays "just compensation."

Of course, this is not at all what the written words, quoted above, in the 5th Amendment say. In essence, the Court's opinion in Kelo means that the 5th Amendment has been changed, has been amended, to read:
. . . . nor shall private property be taken, without just compensation.

How did the 5th Amendment come to be amended? When was the 5th Amendment amended? Which Congress, by supermajority, voted to remove "for public use" from the 5th Amendment? Which states approved the removal of "for public use" from the 5th Amendment? Is it really the case that legislatures in three fourths of the states ratified removing "for public use" from the 5th Amendment?

Of course, we all missed these events because they did not happen. Instead the Supreme Court has taken the words "for public use" out of the 5th Amendment. The Supreme Court has amended the Constitution. On the opinion of only 5 Justices, the 5th Amendment has been changed. Unfortunately, the Supreme Court is not mentioned at all in Article V of the Constitution which establishes the constitutional way of amending the Constitution. I want to suggest that we should all think that the Court's opinion yesterday represents an unconstitutional action by the Court by which the Constitution has been changed.

Now, if the President acts in a way that is unconstitutional, the people have a remedy. The President's actions can be challenged in the judicial branch of government, and the Supreme Court can hand down the opinion that the actions are indeed unconstitutional and that the President is barred by the Constitution from acting in that way. Similarly, if Congress acts in a way that is unconstitutional, the people have the same remedy. Challenge the action in the judicial branch of government. What remedy do the people have when the judicial branch of government, and more specifically the Supreme Court, acts in a way that is unconstitutional?

I'm afraid it seems there is no clear and easy remedy. Perhaps we can look to Article III, Section 1 where we find
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior. . .
It would seem to me that a Supreme Court opinion that amends the Constitution, when the Court does not constitutionally have the power of amendment, could will be consistent with the idea of bad behavior. Perhaps we could impeach those Justices who choose to remove words from our written Constitution? But, this doesn't seem a very likely or practical remedy.

Some will suggest that opinions like Kelo point out how important it is to make good choices when Justices are appointed. Indeed, I think the Kelo opinion emphasizes what the current political fight over Judicial appointments is all about. So, this may be a more practical remedy, as uncertain is it is, given politics today.

One final remedy that I can think of is to work to amend the Constitution after Court opinions like Kelo are handed down. How might the Constitution be amended after Kelo? Perhaps we could add the following words to the 5th Amendment as we think it is currently written:
. . . .AND we really do mean it -- government can only take private property if it takes ownership of that property, it cannot take property owned by A to make that property then owned by B.

Another possible amendment that I think we should probably consider is:
No government (national, state, nor local) can take private property, period.
I strongly urge the belief that in our system of political economy it is outrageous for government to take property owned by A so that B can own it, and develop it, instead. The sense of outrage is deepened, for me, because I'm pretty sure that any attempt to amend the 5th Amendment to remove "for public use" that follows the Constitutional method of amendment found in Article V would never be able to gain the constitutionally required supermajorities in Congress or in the states.

Here are the thoughts of some others I think are worth reading:
Stephen Bainbridge, Don Boudreaux, Todd Zywicki , Charles Fried , and Glenn Reynolds .

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