|| Is Connecticut’s AG Intentionally Misleading the Supremes or Just Incompetent|
MultumInParvo writes "In the matter of Susette Kelo, et al., v. City of New London, et al., to be heard before the Supreme Court, the Attorney General for the State of Connecticut filed a Amicus Curiae Brief in support of the respondents.|
It appears to me that a reading of this brief could lead one to conclude one of two things. The first is that the AG has intentionally written its ACB to mislead the court. The Second is that the AG is not competent enough to understand what he has read. In either case the AG’s ACB is ripe with misrepresentations of the law and does the court and the people a disservice. Let me explain.
On pages 8 through 10 of his brief, the Attorney General cites to two of the greatest works on legal systems in the history of mankind.
When these works are given as a source of authority for a course of action that should be followed, civil society treats those quotations with great reverence.
The two holy grails that were held to be the authoritative sources for the doctrine that the Attorney General wants the court to follow were the [a] COMMENTARIES ON THE LAWS OF ENGLAND (1765-69) By Sir William Blackstone, Based on the first edition printed at the Clarendon Press (Oxford, England), together with the most material corrections and additions in the second edition and [b] The Federalist Papers (1787-88), Alexander Hamilton, James Madison & John Jay [ from what source this edition of the Federalist finds its root is not clear in the Attorney General’s table of authorities on page ii or on page 10 of the brief].
In the first edition of the Federalist - as corrected by Madison, the corrections as to the authorship of the individual papers published in 1819 by Glazier & Co., the contention that Federalist 10, written by Madison, supports eminent domain can not be found. No where in this paper is the phrase eminent domain found. The AG’s contention is found on page 10 of his ACB.
This tension, between the need for government to have power of eminent domain and the need to protect the property rights of individuals , was reflected in the debates in the surrounding the Bill of Rights, specifically in the Federalist Papers, e.g., The Federalist No. 10 at 104-09 (J, Madison) (Hamilton ed. 1868), and formed the backdrop for the eventual adoption of the Fifth Amendment.
We do find in Federalist 10 the word rights used on twelve occasions. On the sole occasion that we find it used with property it is used as a modifier - to tell that type of rights - as is used as follows:
Hence it is that such democracies have been spectacles of turbulence and contention; have ever been found incompatible with personal security of the rights of property; and in general been short in their lives and they have been violent in their deaths.
The AG’s contention as to the stipulations of Federalist 10, on page 10 of his ACB, giving the government the right of eminent domain and what Madison wrote in Federalist could not be further apart or of more different in meaning. Madison clearly states, “ have ever been found incompatible with personal security of the rights of property,” not as the AG states, “This tension, between the need for government to have power of eminent domain and the need to protect the property rights of individuals , was reflected in the debates in the surrounding the Bill of Rights, specifically in the Federalist Papers, e.g..“
The cite and quote the AG attributes to Blackstone [BL] on page 9 of its ACB is not syntax, language and context of BL in his 1765 work. The quote alleged to be from BL on page 9 of the AG’s ACB has [a] taken BL out of context and while doing so the AG has [b] striped away so much of that context that the plain language meaning of the principles of private property rights that BL reported in his works are devoid of their meaning as it lacks [i] the syntax, [ii] language and [iii] context BL used in his 1765 work.
The AG wrote of BL on page 9 of the ACB:
In [certain] cases the legislature alone, can and indeed frequently does , interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving his full indemnification.... All that the legislature does is oblige the owner to alienate his possessions for a reasonable price; and this is a exertion of power, which the legislature indulges with caution, and which nothing but the legislature can preform.
The syntax, language and context the AG attributes to BL’s 1765 works in the AG’s ACB simply does not exist in BL’s 1765 work. The syntax, language and context the AG used is not found in the subsequent octavo first edition published in Dublin in 1771 [on the title page noted as the fourth edition] nor in any of the other 17 subsequent English editions - to the year 1844.
The early American editions of BL by Robert Bee [1771-2], Burton’s edition containing Christian’s English notes  and Tucker’s Edition [1803 -04] do not contain the AG’s syntax, language and context.
It appears to this commentator that the AG [i] has used a commentator’s BL with the commentator’s spin on BL and the AG [ii] has neglected [a] to properly cite that source and note that the source is not using BL “words”.
After comparing what the AG has attributed to BL to what BL wrote in his 1765 works it is clear to this commentator that the words the AG attributes to BL are in fact not Blackstone’s words at all. The source of AG’s cite of Blackstone and the roots of the quotes attributed to BL are not clear [in the Attorney General’s table of authorities on page ii or on pages 8 and 9 of the brief].
Blackstone wrote in 1765 in Book of the First, Of the Rights of Persons, Chapter 1, page 135:
So great moreover is the regard of the law for private property, that it will not authorize the leaft violation of it; no, not even for the general good of the whole community. If a new road, for inftance, were to be made through the grounds of a private perfon, it might perhaps be extenfively beneficial to the public; but the law permits no man, or fet of men, to do this with out confent of the owner of the land. In vain it bay be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Befides, the public good is nothing more effentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law. In this, and fimilar cafes the legislature alone can, and indeed frequently does, interpofe, and compel the individual to acquiefence. But how does it interpofe and compel? Not by abfolutely ftripping the fubject of his property in an abitrary manner ; but by giving him full indemnification and equivalent for the injury thereby fuftained. The public is now confidered an individual, treating with an individual for an exchange. All the legiflature does it to obligate the owner to alien his poffessions for a reasonable price ; and even if this is an exertion of power , which the legiflature indulges with caution, and which nothing but the legiflature can preform.
The AG’s contention as to the stipulations of Blackstone on page 9 of his ACB, giving the government the right of eminent domain, and what Blackstone wrote in his works could not be further apart or of more different in meaning. BL clearly states, “ So great moreover is the regard of the law for private property, that it will not authorize the leaft violation of it; no, not even for the general good of the whole community. If a new road, for inftance, were to be made through the grounds of a private perfon, it might perhaps be extenfively beneficial to the public; but the law permits no man, or fet of men, to do this with out confent of the owner of the land,” not as the AG quoted BL. The AG has completely omitted a substantial amount of the context of this section of BL that gives BL a clear and different meaning to the portion of this section of BL that the AG quoted.
The meaning of this context of BL could not be clearer. The use of eminent domain is limited to government ,as it may deem it important, to appropriate lands or other property for its own purposes, and to enable it to perform its functions, -- as must sometimes be necessary in the case of forts, light-houses, and military posts or roads and its right to do so may be the absolute necessity that the means in the government for performing its functions and perpetuating its existence should not be liable to be controlled or defeated by the want of consent of private parties or any other authority.” Kohl v. United States, 91 U.S. 367, 373 (1876) citing McCullough v. Maryland, 4 Wheat 29 (1819).
The AG, by striping this text from BL’s original context, creates an illusion that the government power of eminent domain greater than what it is. The AG does not show in its striped text version of BL that the government is limited to providing to itself resources to fulfil its function unto itself and no more. The full version of Blackstone does show this.
The AG’s quote of BL, has also left out the context,
“But how does it interpofe and compel? Not by abfolutely ftripping the fubject of his property in an arbitrary manner ; but by giving him full indemnification and equivalent for the injury thereby fuftained.”
The inclusion of this context of BL that is found in the 1765 BL work would provide clear insight into as to what the government’s obligation is to the individual who’s land it was taking, the individual is to be made whole and complete by giving him full indemnification and equivalent for the injury thereby sustained.
Black’s Law Dictionary, fourth edition, page 910, defines indemnity as,
“The term use to denote a compensation given to make the person whole from a loss already sustained ; as where the government gives indemnity for private property taken by it for public use. Proctor v. Dillion, 235 Mass. 538, 129 N.E. 265, 269. It means also restitution or reimbursement. Travelers Ins. Co. v. Georgia Power Co., 51 Ga. App. 579, 181 S.E. 111.
Black’s Law Dictionary, fourth edition, page 636, defines equivalent as,
Equal in value, force, measure, volume, and effect or having equal or corresponding import, meaning or significance ; alike, identical. Salt lake County v. Utah Copper Co., C.C.A. Utah, 93 F.2d. 127, 132; Nahas v. Nahas; 59 Nev. 220, 90 P.2d 223, 224; Kelley v. Clark, 23 Idaho, 1, 129 P. 921, 925, Ann.Cas.1914C, 665.
The AG has not provided one representative example in his ACB that supports his contention that the law prior to 1954 supported eminent domain for the purpose of increasing the tax base revenues of government in economic development.
The AG references and cites to Blackstone or the Federalist in his effort to support his position that eminent domain for economic developmentin based in ancient common law is fallacious and accordingly his ACB should be discounted in its entirety.
Alexander Hamilton, one of the authors of the Federalist, died a violent, slow and lingering death in Weehawken on July 12, 1804 at two o'clock in the afternoon of injuries suffered on the previous day as a result of a duel over a groundless controversy.
This court should be more merciful to the AG’s groundless ACB on February 22, 2005, and put it out of its misery quickly. In this duel that is being fought to preserve the unalienable rights of Americans to own their property. This court should stand with those rights given to all men in the ancient and natural laws of man and recognized as an unalienable right for all Americans in the Declaration of Independence on July 4th, 1776.
Our founders pledged in the Declaration of Independence,
“And for the support of this Declaration, with a firm Reliance on the Protection of Devine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.”
Our Supreme Court should deliver no less than this, honoring the unalienable rights declared to belong to all Americans in the in the Declaration of Independence in this current undertaking before it.
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