“The U.S. Court of Appeals for the 8th Circuit is considering whether St. Louis can regulate what Roos can say concerning what the government has done to him. This case, which arises from unwise judicial deference to city governments wielding the power of eminent domain, demonstrates the dialectic of courts inciting governmental arrogance by deferring to it. So judicial deference often is dereliction of judicial duty.”
George Will, in Sunday April 3rd, Washington Post, makes a strong argument about the abuses of government. In this case it is the abuses of the City of St. Louis in using eminent domain to take property in order to allow developers, men and women who will pay more taxes and have deeper pockets to develop the property. All perfectly permissible, at least according to the Supreme Court in KELO V. NEW LONDON 545 U.S. 469.
George Will has hit upon a problem which has vexed our nation since the Constitution was ratified; how to protect the rights of the minority from the whims and abuses of the majority. James Madison, perhaps America’s greatest political philosopher wrote about this in Federalists #10. What Madison was concerned about, in that brilliant essay is the power of faction, which he defines as “[b]y a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”
What George Will writes of today is the classic example of what Madison wrote; and which he believed the Constitution would prevent. While initially opposed to a Bill of Rights, Madison was persuaded during the course of debate over the ratification, that a Bill of Rights was right and proper. He was persuaded, in part, because of the opposition of his fellow Virginian, George Mason. Mason was concerned that without a clearly articulated set of individual liberties that Government, and here is the important point of his opposition, whether at the federal, state, or local level, would in the name of the power of the majority trample upon the individual liberties of the minority.
The Kelo decision turned the concept that the government may not confiscate ones property without cause and just compensation on its head. The words of the V Amendment of the Constitution are very clear “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.” It had been traditionally believed that for the state to take ones property there had to be a legitimate governmental interest that would benefit all the citizens. In Kelo, the Supreme Court held that a legitimate governmental interest was the confiscation of property which was to be given to private individuals who would pay more in taxes than those who currently owned the property.
Madison, like his friend, feared that it would be governments closest to the people who would abuse the right and individual liberties of its citizens. It is clear, from what Dr. Will writes of today, that Mr. Madison fears were well founded. What would trouble Mr. Madison more is that the courts have become instruments that more often protect the interest of government at the expense of the liberties of the individual.