By Mark David Blum, Esq.

The Republican marketing machine said it was the then so-called Liberal Activist Supreme Court that was the enemy of the People by setting a new standard for the law of Eminent Domain. At that time, I argued that it was not a liberal policy but rather a strict read of the Constitution that gave rise to the outcome in Kelo. Right Wing Conservatives are the government officials that are employing Eminent Domain and then hiding from their ways by blaming others.

Liberals are not about taking your property. Business oriented right wing conservatives are the ones who dominate government. They are the ones who write the laws AND who vote to take property. Do not be hoodwinked into seeing the wrong enemy.

It is the Republicans in government that have limited compensation for property taken. That is the party which assures the taking of money from one property owner and gives it to another. Republicans set the laws, make the rules, and have now caused the taking of 29 local businesses so Mr. Congel can build a parking garage for his mall.

A great conversation started in this nation upon the Supreme Court’s decision in Kelo, the Eminent Domain case. The nation is appalled and wondered how a government body can just snatch up your property and give it to someone else. Doing so is so totally unAmerican.

Because the majority decision was announced by what some define as being the ‘Liberal’ wing of the Court, it was proclaimed worldwide that the ‘activist left’ is ignoring your rights and the constitution.

In response, legislators nationwide have been scrambling to respond to the Court’s decision in Kelo. What is so obnoxious is that these are the same legislators who have dealt with the issue and created the situation that gave Kelo it’s legs. Here in New York, our own legislators are pretending to fix a problem that they themselves created.

Don’t buy into it.

By way of history and background:

The passion du jour on judicial temperament is strict adherence to the letter of the Constitution and any judge failing to do so, is an activist judge. So sayeth the rabble. Upon analysis, however, the “activist judge” is the one who rules against you. The Constitution of the United States gave way long ago to the Constitution of the Judiciary.

Properly seen, a true activist judge is the one who goes against judge made law and precedent and instead, follows the Constitution and the intentions of its signatories.

This is seen today in the argument over 'Strict Construction' of the Constitution. Conservatives turned the principle of Strict Construction on its head. Theirs has become a warped political perspective that begins with the principle that only those rights set forth in the constitution belong to the People and if not so mentioned, they do not exist.

Such an analysis is contrary to every stated intention by every Founder. They were not afraid of the People; theirs was a fear of tyrannical government. Our founding documents were written specifically to diffuse and limit power of government; not the People. The constitution was a document of limitation and those powers enumerated therein are specific and finite.

Remember the Declaration of Independence’s famous line, “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Our Founders’ radical change to the then current political theory was the recognition that “power for governing” arises from below; from the People. Authority does not come from the ‘State’ but rather from the governed. This did not change when the Constitution was written; the theory was codified AS the Constitution.

Our current Supreme Court has been anything but a strict adherent to the Founders’ intentions or to the strict letter of the Constitution. The loudest voices for judicial temperament and strict interpretation have the dirtiest hands on the subject of strictly reading and applying only the text of the actual document. More importantly still is that for me, strict construction should not be a factor. Asking 21st century Americans to live under rules crafted by the hands and hearts of 18th century philosophers is akin to asking a grown man to wear the clothes he wore as a child. Society changes. Thinking changes. So too do politics, economies, and science. We cannot today be held to centuries old thinking and dogma. Our constitution was written to be a living document subject to changing theories and attitudes. We have to accept that. Failure to do so would bind us in slavery to our faults and mistakes and block our growth and maturation as a People and as human beings.

The Right says we should reject Kelo and the liberal majority's decision on Eminent Domain. In doing so, they argue that the Court should have followed the constitution. The ends were obvious and the means were irrelevant. To the Right, there should have never been a taking of the property of one and given to another. Everybody agrees with that. Unfortunately, Courts are not legislatures and can only judge government actions by Constitutional standards. When the outcome is unpopular, you do not throw out judicial reasoning. Demanding the outcome regardless of the law is by some standards, treasonous.

Think about it.

In the eleven years that elapsed between the signing of the Declaration of Independence in 1776 and the drafting of the Constitution in 1787, several basic theories that joined us as a nation changed significantly. To this day, the overwhelming majority of Americans still operate under these discarded theories and ignored the change. That fundamental misunderstanding is at the core of every debate we are witnessing.

Recall Thomas Jefferson’s penned brilliance. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

“Inalienable rights” are, by definition, rights that cannot be transferred or repudiated. You are stuck with them. “Life” is primary among those rights deemed incapable of surrender. To this day, this term is the magic language upon which the political right seizes to make their case against abortion, euthanasia, suicide, and drug use. They have attached themselves to what they believe is an inalienable ‘Right to Life’.

Yet, the signers of the Constitution recognized no such inalienable right. In the Constitution, the word “life” does not even receive a mention until the Fifth Amendment where the drafters said only that life cannot be taken by the government “without due process of law”; whatever that means. Our drafters changed our inalienable right to life to a conditional right to life. If it were inalienable, then no State could enforce a death penalty. Those who argue there is an inalienable right to life have no constitutional premise to their argument. A strict constructionist would never agree there is a “right to life”.

So too with property. The Eminent Domain decision, was in every sense a strict read and application of the Constitution. The Fifth Amendment to the Constitution states clearly that, “… nor shall private property be taken for public use, without just compensation”.

So long as the State makes just compensation, it can take what it wants. Do not forget, that the State is YOU. Your duly elected representatives.

Note there is no specific Constitutional limitation ANYWHERE that says, “no State shall take private property for public use”. There is no absolute right to property ownership to the exclusion of the State. Try refusing to pay property taxes.

The political right screams of an unknown unstated inalienable right to property ownership to the exclusion of the State. We are all appalled

Yet it was the Court’s liberal wing that held fast to the original text of the founder’s writings.

Today, our elected prima donnas like Senator John DeFrancisco, Joan Christensen, and Bill Magnarelli all beat the drum of having to respond to that ‘horrible’ eminent domain decision. Nick Pirro and the rest of the Republican dominated County Government are the guilty parties. They are the Kings who take your property to benefit the realm, pad their pockets, suck up to contributors, and invest in private enterprises which on their own would never survive.

Let us not forget that these are the same folks who passed New York’s eminent domain laws in the first place. These are the same folks who worked hard to minimize the amount of money and assistance a municipality must provide to property owners whose property is taken. The rules are onerous and anybody who has gone through the process knows how badly you get screwed. Standards such as ‘fair market value’ are so vague when it comes to the question of business worth. The laws on the books are written to do as little as possible and still get away with it.

Now, these same cheapskate legislators charge ahead; rushing to the aid of the Salina 29 and the rest of New York. We are going to be saved from the horrors of the Eminent Domain laws thanks to their soon-to-come heroics in the legislature. Trusting any incumbent on this subject is like putting the wolves in charge of the henhouse; placing angels in the hands of the devil.

So while good businesses are shut down this year and the Congel White Elephant leaves its ugly footprint on the face of Onondaga County, take heed and warning; the enemy of the People is not the people or factions thereof. The enemy is your government, its leaders, and their mindset of following the will of the largest campaign contributors.