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AT LARGE by Woody Zimmerman zimmermane99@adelphia.net

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A FIREBELL IN THE NIGHT

“Like a firebell in the night, it awakened me and filled me with terror…”

Thomas Jefferson said that about slavery long before the Civil War. He understood the danger the institution represented to America, and foresaw that it might mean disaster if left uncorrected. Recently, our generation’s “firebell” was rung by the Supreme Court. We need to realize what it means and understand what must be done.

On June 23, 2005, the Court ruled on Kelo v. City of New London – the case where officials of New London, CT, condemned Susette Kelo’s property, under the power of Eminent Domain, so they could resell it to a private developer who planned to build a commercial concern on it. Officials argued that jobs and increased tax revenues expected from the new development were a valid reason for a “taking” within the meaning of the Constitution’s Fifth Amendment. Ms. Kelo, of course, disagreed. Surprising many, the Court sided with New London by a vote of 5-4.

The ruling created a national uproar. Pundits and commentators have denounced the Court’s radical expansion of Eminent Domain. Politicians from all points of the political spectrum –governors and state legislators, as well as Congressmen – have vowed to right this “misguided” ruling which, as Justice O’Connor affirmed, threatens all private property.

Legislation will probably be passed by some states to prohibit Kelo-style Eminent Domain. A bi-partisan bill might even emerge from the U.S. Congress to a chorus of acclaim. The president will certainly sign it, and everyone will be happy. The folks back home will think their representatives have actually solved the problem.

Unfortunately, all this legislative hyper-ventilation will be useless. The new laws won’t be worth diddly, as the home folks will learn the first time some town council tries to seize a property for private development and is sued by an aggrieved owner. Then, both state and federal courts – bound by legal precedent – will reverse any federal or state laws which contravene Kelo. They must do so, for the Court has already spoken on this issue. As things stand, its word is final.

That legislators have made such a great show of “reversing” Kelo indicates two possible problems with respect to their understanding of the legal situation: i.e., either

(1) They do not realize how controlled we have become by court-activism; or

(2) They realize it, but hope they can fool the people into thinking we still rule ourselves.

For more than a half-century the Supreme Court has taken judicial activism to ever-higher levels. In ruling after ruling, justices have divined previously unrealized “rights” or placed new limitations on time-honored rights. The Court has created new law without reference to the Constitution. In recent rulings, some justices cited foreign laws or “evolving consensus” to justify their rulings. The Constitution is no longer the sole foundation of our laws. For example –

• In 2003, the Court struck down the University of Michigan’s affirmative action admissions rules (Gratz v. Bollinger), but approved affirmative action at University of Michigan Law School (Grutter v. Bollinger). In her majority opinion on Grutter, Justice O’Connor wrote that affirmative action should be needed only for an additional 25 years – a number pulled entirely from the justice’s left (or possibly right) ear.
• A right to unrestricted sodomy remained undiscovered in the Constitution for 215 years until the Court found it in 2003 (Lawrence v. Texas). Foreign laws were cited as the basis for removing sexual mores from the purview of states and local communities which have long governed such matters.
• In two 2005 decisions only lawyers could love, the Ten Commandments were found to violate the Establishment Clause of the First Amendment when posted inside a Kentucky courthouse ( McCreary v. ACLU), but not when displayed outside a Texas courthouse ( Van Orden v. Perry).

The Court has gotten by with this kind of legal adventurism because part of the electorate usually agrees with its rulings. Liberals, especially, have enjoyed having the Court enact parts of their agenda which the Congress could never pass. The Court has retained power by dividing and conquering. By approving its decisions, the electorate has enabled the Court’s misuse of power.

The Kelo ruling departs from this pattern. The political left, right and center all dislike it. (Perhaps the Court miscalculated its constituency.) Notwithstanding all the energetic declaiming and drafting of legislation, however, no ordinary law can “reverse” a Supreme Court ruling. The system doesn’t work that way. The Congress might say “No” to using Eminent Domain for tax-base enhancement, but the Court has said, “Yes – because we say so”. It holds the high cards.

What, then, can be done? At least three things:

• Short-term, we can return to the Constitution (what a concept!) to correct a Court that is adrift from the document that should be its sole mooring. There is a protocol for this. Article III states (in part): “…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 clause empowers Congress to restrict and regulate the purview of the Court. Herein lies the key to correcting Kelo. The Congress must accomplish two steps. First, it must enact legislation to restrict the Court from ruling on Eminent Domain – i.e., fencing off this area from further rulings. Second, the Congress must reverse Kelo by enacting corrective law.

• Long-term, we can elect presidents who appoint Supreme Court justices committed to the Constitution – not to penumbras, emanations, foreign law, or evolving consensus – as the measuring stick for our laws. We can elect Senators who accept the president’s right to appoint judges he believes to be best for the country. And, most significantly, we must educate citizens on the correct roles of the three branches of government. Much of the Court’s misappropriated power derives from the ignorance of the people.
• An additional tactic might be impeachment and removal of federal justices who ignore the Constitution. In our history, eleven federal District Court justices have been impeached. Of these, seven were convicted and removed from office – the last three in the 1980s. The only Supreme Court justice ever impeached (Samuel Chase, 1804) was acquitted.

Impeachment of a Supreme Court justice for failing to uphold the US Constitution would be radical, but radical times call for radical measures. We might have to consider it. Foreign statutes and a nebulous “evolving consensus” are not acceptable foundations for our laws.

The Supreme Court has had a long, successful run of avoiding political heat from the public for some pretty outrageous decisions. If they get away with Kelo, even more extreme decisions are certain to follow. Redefinition of marriage to include same-sex unions might be one of them. Court interference in our military services and government agencies could soon follow. Reversing Kelo might be the key to retaining our culture, societal morality and self-governance.

Soon after the Kelo decision was announced, House Minority Leader Nancy Pelosi likened the Court’s rulings to “the Voice of God” – showing how extreme the situation has become. (Has anyone ever compared the president’s or the Congress’s words with the Word of God?)

Liberals have loved having an activist Court keep their agenda in play, but even they must see that the party is over. If something as fundamental to American liberty as secure ownership of one’s property can be overturned by the Court, what part of the Constitution might be next? Are we really willing to entrust our future as a free people to nine life-tenured justices, accountable to no authority but themselves? None of the nation’s Founders ever envisioned such a thing.

Kelo is our fire-bell in the night, warning Americans that an unaccountable Supreme Court now threatens the health of the Republic. The Court is out of control. We must act.

As Ronald Reagan once asked: “If not now, when? If not us, who?”

*******

Feedback on “Waging War Then and Now – Part II”. A reader wrote to ask me about the “confluence of reasons” that kept me from being drafted during the Vietnam War. (Maybe she thought I was hiding something.) The short answer is that the article wasn’t about me, so I didn’t go into detail about my situation. But just in case she (or other readers) wonder whether I fled to Canada, or if a relative sat on my local Draft Board, I hereby make “full disclosure”.

When my wife graduated in 1962, we got married. I was still an undergraduate. Our daughter was born just before my senior year (1963). Casting about for job prospects, I spoke to the Army recruiter about joining up. He was enthusiastic until he learned that I was married and had a child. The war wasn't on yet, and commissions weren’t offered to married-with-children candidates.

Thus, I was assigned Selective Service code 3-A. (1-A was ready to be drafted; 2-A was occupationally deferred; 2-S, student-deferred; 4-F, physically defective.) Early in the war, only single men were drafted. Later, married men without children were taken. As 3-A, I was never selected. My student deferment, however, made me (technically) eligible until age 35.

Even before the war, the draft hung over male students like the Sword of Damocles. If your cumulative grade-point fell below 2.00 (C), or you failed to take enough hours to be classified full-time, or you didn’t pass enough courses to retain full-time status, the Dean was required to notify your Draft Board. You lost your student deferment and were re-classified 1-A. Several classmates were drafted because of low grades. (Girls had no worries about such things.)

As for relatives with connections – my mother’s uncle actually served on the local Draft Board during World War II, but this did my father no good. After Normandy, any man who could walk into the physical exam was taken (even if he saw too poorly to find his trousers after the exam). The USA had nearly 14 million men (and women) under arms by the end of World War II. Many married men with families were drafted.

As a young man, my father loved airplanes, so when the war came he tried to enlist in the Air Corps. He was rejected because of poor eyesight and bad teeth. Later, the Army waved those defects off. He slogged through the mud in Europe with new glasses and dentures.