This land is my land – but not for long

According to James McHenry, who was one of Maryland’s delegates to the Constitutional Convention of 1787, when Benjamin Franklin left Independence Hall on the final day of deliberations he was asked, “Well Doctor, what have we got, a republic or a monarchy?” Franklin replied, “A republic, if you can keep it.” The U.S. Supreme Court’s recent decisions on eminent domain and medical marijuana make this task much harder.

While the founders understood republican government to mean government by representatives of the people, they didn’t believe that the majority should always get its way. They believed that there were some areas of life where individuals should be free from majority rule. One of the ways the founders sought to protect these rights was by listing them in the Bill of Rights, the first 10 amendments to the federal constitution.

The Takings Clause of the Fifth Amendment was intended to protect individual property rights. The founders believed that an individual couldn’t be free if his ability to own property was not secure. Private property is no less essential for freedom today than it was in 1791. Without it, we would be completely at the whim of government. You wouldn’t be able to play horseshoes, worship the moon or whatever it is you like to do in your backyard, because your backyard would no longer belong to you.

The Takings Clause placed two limitations on the government’s power to take property: the taking must be for a “public use” and the landowner must receive “just compensation.”

A Supreme Court decision issued last month has so broadly defined “public use” that it is no longer a limitation on the power of eminent domain. Now government can take your land whenever it can make an argument that somebody else can make better use of it, which is virtually always. The potential for abuse is enormous.

For example, your mayor and board of aldermen may take your home and give it to the real estate developer who contributed heavily to their campaigns on the ground that a strip mall would generate more taxes than residential homes. Or your board of selectmen may decide the local newspaper, which just happens to be very critical of the selectmen, would better serve the town as the site of an upscale office park.

As Justice Thomas pointed out in his dissent, “Something has gone seriously awry with this court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not.”

Another way the founders sought to protect individual rights was by limiting the power of the federal government. Certain powers were granted to the federal government, while the states got to keep the rest. The Commerce Clause was intended to empower the federal government to regulate trade among the states. But in another decision issued last month, the Supreme Court said that this power can be used to regulate virtually anything.

The issue was whether a federal law criminalizing home-grown marijuana used for medical purposes was a valid use of the Commerce Clause. The court said it was.

But as Justice Thomas pointed out in his dissenting opinion, the case involved “marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.”

Which is precisely what the founders didn’t want. And what we shouldn’t want.

When decisions that can be made by state governments are made by the federal government, people outside your state get to tell you how to live your life, which makes you less free.

The good news is that both decisions were 5-4. The bad news is that the two justices who are rumored to be contemplating retirement this year, Rehnquist and O’Connor, were in the minority in both decisions.

Ed Mosca is a Manchester attorney and former chairman of that city’s Republican Party.

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