Lies the government told you by Andrew Napolitano (best e reader for epub TXT) 📗

lasted until Brown v. Board of Education was decided, fifty-eight years later. This was a Supreme Court that probably feared being labeled “activist,” or worse, that agreed with the ramifications of its decision.

The case of Korematsu v. United States is another case in which the Supreme Court dropped the ball and deferred to a federal government that was openly persecuting people of Japanese descent, including many Japanese-Americans. I will not go too far into the details of this case, as it is discussed in later chapters, but basically, after the Japanese attack on Pearl Harbor, the federal government freaked out and started setting curfews for Japanese-Americans living in this country, displacing them from their homes, and placing them in internment camps. The government claimed that since some Japanese-Americans were “disloyal” to the United States and could not be trusted, we might as well round up all of them to play it safe. The first problem with this twisted notion is that in America, you cannot be convicted of a crime only because you have the same heritage as others who commit crimes. In the United States, only individuals are guilty of crimes. The second problem with the government’s program was that it was blatantly racist.

The Supreme Court in Korematsu, in truly amazing fashion, acknowledged that the United States was infringing on the fundamental rights of Americans based on race. Nevertheless, during World War II, the impression of safety was more important to the Court than the reality of individual liberties. Instead of reversing the government during a time of war, the Court was silent, passive, and weak, and allowed the persecution to continue.

In the case of Kelo v. New London, decided in 2005 (also discussed in Chapter 2), the Supreme Court stood idly by (or at least five of its members did) as the City of New London violated the Constitution. In an effort to rehabilitate the New London economy, the City developed a plan to create jobs and refurbish the downtown and waterfront areas. The City intended to build a waterfront hotel, a park and river walk, restaurants and retail stores, new residences, marinas, and office and research facilities on ninety acres of land in the Fort Trumbull area. Some of this land was already privately owned. Some of the private landowners voluntarily sold their land to the government, and others were informed that the City would use its eminent domain power to take their land. This threat prompted private landowners to sue the City, arguing that the development plan was an abuse of the power of eminent domain.

State and local governments have the power to seize private property, but that property, according to the Fifth Amendment’s Takings Clause, must be “taken for public use” and the private owners must be provided “just compensation.” The plaintiffs in Kelo argued that their land was not taken for “public use” because the City’s plan was to be carried out by a private developer, much of the developed land would not be open to the general public, and under the plan, some of the benefits the City sought to reap were economic benefits such as increased tax revenue.

This case was a relatively difficult one because the Fifth Amendment does not define “public use.” The Framers could have meant that the land taken must be exclusively open to the general public. But they could not have meant that the government could essentially evict people from their homes so that the city in which they live will benefit economically. It seems clear that the City of New London’s plan worked to evict its private landowners, and allowed the government to benefit much more than the “public.” Unfortunately, in a 5 to 4 decision, the Supreme Court upheld the plan when it should have invalidated it.

The fact is that the Supreme Court has been tweaking the “public use” requirement for some time, and allowing the government to violate the Constitution as a result. In the eighteenth and nineteenth centuries, the phrase “public use” simply meant “a use by the public.” Over the last century, though, the government and the courts have turned the Takings Clause on its head. Today, “public use” has morphed into “public benefit,” a softer requirement whereby the government can steal our land, give it to their corporate cronies, and claim that the developer’s use “benefits” the public. This is exactly what happened in Kelo.

Justice Sandra Day O’Connor realized this atrocity and wrote an inspired dissenting opinion in Kelo. O’Connor conceded that the Court defers to legislative judgments about what government actions will help the public. However, O’Connor feared that by allowing the political branches to be “the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff.” O’Connor, like Chief Justice Marshall in Marbury v. Madison, stressed that some form of judicial review is necessary for the Takings Clause to have any meaning at all. According to O’Connor, “An external, judicial check on how the public use requirement is interpreted . . . is necessary if this constraint on government power is to retain any meaning.”

Constitutional Activism

The Supreme Court of the United States has often addressed constitutional issues head-on, standing up to government actions, and making policy that reflects the sentiment of the Constitution and the Natural Law.

In Brandenburg v. Ohio, for example, the Supreme Court struck down the Ohio Criminal Syndicalism statute, which made it a crime to “advocate . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and to “voluntarily assemble with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” Clarence Brandenburg, an Ohio Ku Klux Klan leader, was convicted under the Act after a rally he held in Hamilton County, Ohio. At the rally, Brandenburg alluded to the idea that “there might have to be some revengence [sic] taken” against the federal government. One