Other Columns by Kevin Fobbs
Kevin Fobbs Bio

Printer-Friendly Version

As our nation leads up to our celebration of its birth, we seriously have to wonder whether or not we will have anything left of our Constitution to truly celebrate. After the "Kelo vs. City of London" decision handed down last week, where the U.S. Supreme Court performed a seeming abrupt about face on the 5th Amendment and more importantly on America, when will the Constitution be returned to the American people?

The U.S. Supreme Court's surgical disembodiment of the Fifth Amendment was, not a quick and deliberate action. Rather, it began as a stealth process born in the halcyon days of the mid-30s during President Franklin D. Roosevelt's administration. This is when the essential protections, assured by prior Supreme Court rulings defending and protecting the private ownership rights of property, began to be supplanted.

Judge Janice Brown recently confirmed to the Federal Appeals Court D.C. Circuit addressed this concern in April of 2000, as she spoke to the Federalist Society in Chicago. She stressed, "Protection of property was a major casualty of the Revolution of 1937" In "Williamson v. Lee Optical" "The court drew a line between personal rights and property rights or economic interests, and applied two different constitutional tests."

"Rights were reordered and property acquired a second class status. If the right asserted was economic, the court held the Legislature could do anything it pleased. Judicial review for alleged constitutional infirmities under the due process clause was virtually nonexistent."

This is a crucial point. Americans believed up through the mid-30s that the founding fathers had safe guarded our property rights against possible government officials and courts who would attempt to repeat the previous common English government practice of granting and taking private property based upon the whims of the local official. No reason was needed nor given. Sounds eerily familiar?

So the 5th Amendment became our piece of the rock. It was our insurance policy against whimsical, malicious, capricious behavior exercised on the part of local government officials to unilaterally declare you, the property owner, a tenant in your own home, dethroned in your own castle, a serf without title to your own land.

Judge Rogers also addressed another key component of this 1930s Supreme Court dissection of our property rights. "On the other hand, if the right was personal and "fundamental," review was intolerably strict."From the Progressive era to the New Deal, property was by degrees ostracized from the company of rights."

"Something new, called economic rights, began to supplant the old property rights. This change, which occurred with remarkably little fanfare, was staggeringly significant. With the advent of "economic rights," the original meaning of rights was effectively destroyed. These new "rights" imposed obligations, not limits, on the state.

So the "Kelo" decision did not make necessarily new law, but rather re-confirmed an ever evolving doctrine of transferring personal property rights from individuals and conferring them upon the state or now in the hands of individual developers.

>> Continued -- Page 1 2 3