Basic Jurisdictional Principles
A Theological Inventory of American Jurisprudence
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  Amendment V: Conclusion – Takings Now  
 
 
"A law which is so obscure in its promulgation that a reasonable person could not determine from a reading what the law purports to command or prohibit is void as violative of due process." 1
"[A] law which does not fairly inform a person of what is commanded or prohibited is unconstitutional as violative of due process." 2
Misera est servitus, ubi jus est vagum aut incertum – "It is a wretched state of slavery which subsists where the law is vague or uncertain." 3
Res est misera ubi jus est vagum et incertum – "It is a wretched state of things when law is vague and mutable." 4
 
 

Amendment V (cont’d):

Conclusion – Takings Now:

We conclude that under the global covenant, confiscation of property cannot be justified except as a jural taking. Takings for any other reason are bloodshed. Any secular social compact has a license to take for the sake of satisfying a lawful need of its lawful jural society, as long as it supplies just compensation. Such lawful needs include the building of military bases, police stations, electrified fences on international borders, etc. Such needs emphatically do not include things like building "Post Offices", "post Roads", highways, railroads, airports, ditches, canals, pipelines, bridges, shopping malls, metropolitan historical districts, etc. The latter are legitimate functions of a free market. They are not legitimate functions of a lawful secular social compact. That’s because the sovereignty of a secular social compact derives from its jural society. The sovereign of a jural compact is by definition the aggregate consent of those who collectively commit themselves to abiding by the bloodshed mandate.

Even though numerous Americans (Native-, African-, Euro-, Asian-, and practically all others) have suffered government-perpetrated bloodshed as a result of secular government’s misconstruction of its sovereignty, a statute of limitations needs to be recognized regarding such bloodshed. Otherwise, the whole system is likely to collapse as a result of victims, and progeny of victims, seeking retribution and/or restitution. Practically all States have a statute of limitations regarding delicts that are not capital. There is an implicit statute of limitations for capital offenses, marked by the death of the perpetrator. The people who massacred Black Kettle’s band of Southern Cheyenne are all dead. The best thing we can do now is not to hunt down all the progeny of the perpetrators and prosecute them for things their ancestors did, and it’s not to demand restitution from the secular governments. The best thing we can do now is to make sure government never does these kinds of things again. That includes avoiding theft of people’s land for boondoggles, almost as much as it does avoiding mass murder. — It’s reasonable to wonder how we can expect the secular governments of the united States to be worthy of continued existence when they allow the implicit statute of limitations with regards to mass-murder to be exhausted: God has never expected human governments to be perfect. He knows that human beings are flawed, and that human governments will also be flawed. One of the miracles revealed in His unfolding of His plan for redeeming humanity is that He uses the evil acts of human beings in his plan of redemption. In the words of the Patriarch Joseph, "[A]s for you, you meant evil against me, but God meant it for good in order to bring about this present result, to preserve many people alive." (Genesis 50:20; NASB). Applying the same idea to American history, what these perpetrators of mass murder, theft, fraud, etc., meant for evil – even when they deluded themselves into believing that such evils were good – God meant for good. God condemns those who call evil good, and good evil, but He has also made accommodation from the beginning of time, for such perversion. The evils that our imperfect positive law fails to address, God’s eternal law never fails to address. Likewise, God’s sovereignty, even over evil, does not negate the fact of human moral accountability under His law.

The so-called "right" of eminent domain is only one kind of deprivation that government imposes on people. The Due Process Clause, "No person shall . . .  be deprived of life, liberty, or property, without due process of law", rationally encompasses eminent domain. It appears in the 5th Amendment as a limit on the general government, and in the 14th Amendment as a limit on the States. In supreme Court jurisprudence, due process is usually divided into two categories, substantive and procedural. Procedural due process pertains strictly to how government takes action. Substantive due process pertains to whether government takes action. Generally, in the Bill of Rights, 5 the 1st Amendment is seen to pertain to substantive due process, and Amendments II-VIII are seen to pertain to procedural due process. This distinction between these two types of due process appears in Londoner v. Denver (1908) and Bi-Metallic Investment Co. v. State Board of Equalization (1915). These two cases, along with others, combine to draw a distinction between (i)cases in which government selects an individual for a deprivation (an action which has traditionally activated the constraints of procedural due process), and (ii)a general rule that impinges on numerous people, and doesn’t activate such constraints. In keeping with ancient jurisprudence, the supreme Court has held that notice and a hearing are crucial to procedural due process: "The fundamental requisite of due process of law is the opportunity to be heard" (Grannis v. Ordean (1914), p. 394). 6 — Because the takings clause demands a redefinition of sovereignty, and a redefinition of how government’s subject matter and geographical jurisdictions function together, it demands to be more than merely procedural. It is implicitly substantive because it pertains to whether government takes action, and it is explicitly procedural because it pertains to how it takes action, if it does.

Even while we see this circumscription of the takings clause as being fundamental and essential to its accordance with the global covenant, the reality today is much worse than the framers ever envisioned. These days, secular governments have allocated the presumed power of eminent domain to "private persons or corporations authorized to exercise functions of public character". 7 Very little of what these "private persons or corporations" do constitutes lawful takings. They instead constitute unlawful, coercive bloodshed perpetrated under the color of this license to take.

Besides secular government’s whimsical sharing of this colorable license to take, these 21st century secular governments also far exceed the framers’ vision of the takings clause on a slightly different front. A taking is a deprivation. But a far more common type of taking than a taking is a regulatory taking. When government exercises its claim to eminent domain, it exercises a type of taking in which the title is transferred, at least in part, from the original owner to the government (or the corporation, or whatever). When the government sets limits on how a person can use his or her property, there is often a negative effect on the usefulness of the property, which means that the owner doesn’t make as much "money" as he/she otherwise would. For example, if Sam owns a corner grocery store, and the secular government re-zones his property so that he cannot have a grocery store there any more, but he can only have residential rental property there, then the "money" he makes from the grocery store is terminated. To keep making "money" off the property, he has to spend a large chunk of "money" to convert the store to a residence. Then he might not make as much "money" off the rental property as he did off the grocery store. Zoning is an exercise by government of a presumed police power, a regulation. In Sam’s case, it deprives him of all the "money" he loses in shifting his property from a grocery store to rental property. This is why it’s called a regulatory taking. Since the American economy is extremely regulated, regulatory takings are extremely common. Under the 5th Amendment, government is required to supply just compensation for any individualized deprivation. But even though "the doctrine of a regulatory taking was recognized by the Supreme Court in Pennsylvania Coal Co. v. Mahon (1922), the justices have found it difficult to distinguish between appropriate land use controls and regulations that effect a taking.". 8 In other words, the government is abusing people’s rights and the supreme Court is doing absolutely nothing to stop it. 9

Instead of having the government do what it’s supposed to do, protect our rights, the supreme Court has developed a new concept of property, called "new property". "In the 1970s, the Court articulated a ‘new property’ concept, which includes government-provided benefits, licenses, or statuses (such as that of public employee) that have value, are relied upon by individuals, and can be called statutory, regulatory, or contractual entitlements." 10 — Here is more evidence that the supreme Court, the general government, and all the State governments have wandered so far away from common sense that they don’t know what property is any more. Property derives from unalienable Rights and God-dispensed privileges, not from government benefits, licenses, privileges, statuses, entitlements, etc. The collective dispensations from the mega-state are nothing more than a massive fencing operation. With one hand the mega-state steals from Peter, then uses the other hand to turn the stolen goods over to Paul (in exchange for Paul’s vote).

Zoning officials have been accustomed to functioning with practical immunity in their municipal fiefdoms for a long time. Since the start of zoning at the beginning of the 20th century, zoning officials have been subject to various constitutional limitations, including those that protect religious freedom. But the supreme Court’s thinly veiled political agenda of trying to remove police powers from the general government – thereby allowing States to exercise their traditional police powers – is having the effect of eliminating even these constitutional protections. The most notorious recent example – at this writing – of such abuse of eminent domain, showed up in Kelo v. New London (2005). That case should be conclusive proof to even the most fervent believer in the secular religion that secular governments have virtually no regard for private property. Eminent domain is another instance of government (i)creating a problem, (ii)misidentifying the cause of the problem, and (iii)creating a solution that makes the problem worse.

Footnotes

1Black’s 5th, p. 1412 (See void for vagueness.).

2Black’s 5th, p. 1389 (See vagueness doctrine.).

3Black’s 5th, p. 902.

4Black’s 5th, p. 1176.

5URL: ./0_6_Bill_of_Rights.htm.

6The Oxford Companion to the Supreme Court of the United States, p. 236, "Due Process, Procedural", by Thomas O. Sargentich.

7Black’s 5th, p. 470.

8The Oxford Companion to the Supreme Court of the United States, p. 715, "Regulatory Taking", by James W. Ely, Jr.

9This is perfectly consistent with the supreme Court’s position regarding the taking exacted through the "hidden tax" levied by the Federal Reserve. They have affirmed the Federal Reserve’s power to create fiat money, which causes inflation, which reduces the purchasing power of every dollar in circulation, which is a taking without just compensation. — For more on this, read The Creature from Jekyll Island.

10The Oxford Companion to the Supreme Court of the United States, p. 236, "Due Process, Procedural", by Thomas O. Sargentich.

 
 
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