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A Nation of Laws or Judges?
Column by Sen. Trent Lott  
Filed 7/1/05

    Last week the U.S. Supreme Court ruled that the government can take your property – not for “public” use like a new road, bridge or basic public infrastructure, as the Fifth Amendment proscribes – but for private use.  In Kelo vs. New London, the nation’s highest court upheld a city’s condemnation of perfectly good, blight-free homes to make way for private developers to build a health club.  The message: As long as a use generates more tax revenue than your use does, it’s okay for a local government to condemn your property, even on behalf of a private concern.  This case joins a litany of recent decisions inconsistent with America’s traditions, and I hope Mississippians will join me in fighting them.

First, we can fight by getting involved in the effort to confirm judges who will interpret the law, rather than make it.  Judges who have decided that our Constitution is a living, breathing document that changes or evolves over time are the root cause of troublesome decisions like this.  With their flawed view of a Constitution that bends like Play Dough, they have taken it upon themselves to write their own laws, essentially bypassing you and your elected representatives.

By applying that approach to this case, not only have they expanded their own power, they’ve given city or county officials huge new authority to determine your destiny – whether you can own your property or not.  In fact, a private concern that wants your house out of the way doesn’t even have to prove their development will result in more tax revenue.  The mere prospect of increased taxes is enough for local officials to compel you to sell it.

In effect, the Fifth Amendment, which has always allowed the government to pay the fair market value for private property needed for reasonable public uses, has been amended.  The justices basically just marked out the world “public” and inserted the term “any.”  As a result, there now is no distinction between private and public property ownership.  Clearly, it’s time to change the makeup of our Supreme Court, and the July 1 retirement of swing vote Justice Sandra Day O’Connor provides the first opportunity.  When the next Supreme Court nomination is sent to the Senate by President Bush, I hope Americans will insist of their Senators that any court nominee be one who interprets the law rather than makes it.

In addition to shaping the court’s composition, the Senate also can work within the legislative process to offset questionable decisions like the eminent domain ruling.  I already have joined with other Senators to introduce legislation aimed at protecting private property rights from this court decision.  After all, if we fail either to get good judges on the bench or to address this problem through legislation, the Supreme Court’s recent questionable rulings could continue.

The eminent domain property case isn’t this court’s only bizarre decision of late.  In McCreary County vs. ACLU of Kentucky, the court struck down the display of the Ten Commandments in a Kentucky courthouse.  The majority on the court said the display had a “predominantly religious” purpose, even though it was part of a permanent display with other non-religious documents that are the foundations of our judicial history and tradition. 

Contrast that decision with Van Orden vs. Perry on the same day, where the court upheld the legality of a Ten Commandments monument erected by a civic organization on the Texas State Capitol grounds.  In this case the court majority said this display was reflective of American history, and the justices even acknowledged the multitude of Ten Commandments displays in government buildings across the country.  I guess that includes the statue of Moses atop the Hinds County Courthouse.

So here we have a court which says that it’s okay for governments to take your private property and give it to other private property owners.  And, we have a court which says that a permanent Ten Commandments display coupled with our other historic documents is “too religious,” while a stand-alone temporary display of the Ten Commandments by a civic club on the courthouse lawn is not and actually is consistent with all the other fixed Ten Commandments displays in public buildings.

Sound confusing and inconsistent with our basic values?  Well, it is.  The court should do what our Founding Fathers designed it to do – interpret the Constitution as written.  After all, ours isn’t supposed to be a nation of judges, but of laws, made by the people.  (7/1/05) 


Senator Lott welcomes any questions or comments about this column. 

Write to: U.S. Senator Trent Lott, 487 Russell Senate Office Building, Washington, D.C. 20510 (Attn: Press Office) or Email: senatorlott@lott.senate.gov

Editor's Note: GCN published Sen. Trent Lott's column with no editing or changes.

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