Posts Tagged ‘Fifth Amendment’

Ellen BrownIn her January 15, 2012 OpEdNews article, Occupy the Neighbourhood: How Counties Can Use Land Banks and Eminent Domain, Ellen Brown writes:

Local governments have the power of eminent domain: they can seize real or personal property if (a) they can show that doing so is in the public interest, and (b) the owner is compensated at fair market value.

Eminent domain is the power of government to take private property for public use. It is governed by the relevant section of the Fifth Amendment to the U.S. Constitution, which states:

[N]or shall private property be taken for public use, without just compensation.

The term “public use” was always intended to mean owned by the public, and not by private entities.

This principle was overthrown nationwide by the U.S. Supreme Court decision, Kelo v. New London (2005).

If public use meant for private use, then well-connected private entities could use the power of government to seize private property for their own private use, and that is contrary to one of the goals of the Constitution, in protecting private property.

She writes that in the case of seizing properties being foreclosed on by the banks:

The public interest part is obvious enough.

Except that it’s not in the public interest to seize private property from one individual to give it to another under this clause of the Constitution.

I do want to point out that I part company with the majority of self-styled libertarians and conservatives who say that The Bill of Rights applies to corporations, of which banks are. I hold that the Bill of Rights applies only to individuals and non-corporate associations of individuals, since only individuals have “rights.” Corporations are creatures of government, as Stefan Molyneux so clearly espouses, and, therefore, they have no rights.

But the question of whether corporations are covered by the Fifth Amendment to the Constitution is separate from whether the “public use” provision refers to whatever government says is for public use.

I do find it odd that she takes the originalist position on the power of Congress to coin money as meaning only the power to strike coin, while not taking an originalist position on this and several other key provisions of the Constitution.

While it can be argued that “public use” has a flexible definition that “coin money” doesn’t, those who say coin money means the power to create money would take exception with that view. In any case, I don’t see her making a consistent application of originalist interpretation in these two cases.

For more on eminent domain, see my articles:
1) The Supreme Court of the United States isn’t interested in protecting liberty or property
2) A gold mine of opportunity and a deficit of principle

There have been times I have agreed with Ellen Brown, but on this, I can’t agree.

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With all the blatant violations of U.S. law, including warrantless wiretapping (Fourth Amendment), the denial of a speedy trial (Fifth Amendment), habeas corpus (Article I, Section 9) for Guantanimo detainees and others, and the lack of federal prosecution for such crimes, my question is: where are the grand juries?

According to the American Bar Association, as of 2008, six states allowed for citizens to petition to impanel a grand jury. They are Kansas, Oklahoma, New Mexico, North Dakota, Nebraska and Nevada.

In Kansas, which was said to have been using it most actively at the time:

Convening a grand jury there requires citizen signatures amounting to just over 2 percent of the number of people who voted in the most recent election for state governor.

In one famous case, that only required 4000 signatures.

If a grand jury were to be impaneled in any of those states, it would be able to indict individuals for obvious crimes against the Constitution by anyone operating in those states. Indictment for warrantless wiretapping should be the most likely of the crimes I mentioned because the infrastructure for wiretapping is set up across the country, and the issue lacks the politically charged nature of the violations of the Constitution involving the Guantanimo detainees that political opportunists would seize upon to thwart such attempts.

For those upset with President Obama accepting the excuse used — and ultimately rejected in the Nuremberg trials — of just following orders, these state grand jury laws provide a way for individual citizens to hold their government officials accountable when their elected representatives won’t.

For more on the power of juries, see my article Jury nullification.

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Two hangman's nooses and gallows behind the co...

Some have argued that the death penalty is unconstitutional, including the Supreme Court itself in the case of Furman v. George (1972), citing the prohibition against cruel and unusual punishments in the Eighth Amendment to the U.S. Constitution, which states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

While I would agree that a specific application of the death penalty is unconstitutional if it violates the constitutional provisions of criminal justice, another amendment to the Constitution clearly shows the death penalty is a constitutional form of punishment for certain crimes.

The relevant sections of the Fifth Amendment are:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,


nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;


nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;

Since all 10 amendments to the U.S. Constitution, which constitute the Bill of Rights, were ratified on the same day of December 15, 1791, it is therefore clear that their provisions should be considered as a whole.

The fact that the Fifth Amendment mentions “capital crime,” “jeopardy of life,” and “deprived of life” as valid under certain circumstances shows that the death penalty is a constitutional form of punishment for certain crimes.

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The Bill of Rights, the first ten amendments t...

I once heard a liberty-oriented radio host say that just compensation (for the taking of private property for public use) used to require the consent of the property owner.

While that may be, it wasn’t a requirement in the minds of those who drafted and ratified the Bill of Rights — the first 10 amendments to the U.S. Constitution.

The proof of this is the explicit requirement of the consent of a real property owner in the Third Amendment:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

The requirement of just compensation for the taking of private property for public use as specified in the Fifth Amendment is as follows:

nor shall private property be taken for public use, without just compensation.

If they had intended just compensation to mean consent, they would’ve said so, just as consent of the property owner is explicitly mentioned in the Third Amendment.

The taking of private property for private use, however, I’d argue, does require the consent of the property owner, according to the Fifth Amendment to the U.S. Constitution, and common law.

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A 250kg gold bar in the Toi gold mine

On the January 29, 2011 episode of The Secret Truth, The International Forecaster, Bob Chapman, said at 28:02:

All these people wanna avoid using gold and silver [for backing the currency]. The excuse is, that, the elitists own 20, 25, 30 percent of all the gold in the world, and my answer is, “so what?”

The so what is that the interests that control over 20 percent of the world’s gold supply would be wealthy simply based on the gold they currently possess, regardless of how lawfully they obtained it.

The Fifth Amendment to the U.S. Constitution requires “just compensation” for the taking of private property for public use.

This would effectively result in a public transfer of gold, held in places like Fort Knox, from the U.S. government to the banks, which would likely demand payment in gold for their gold, instead of paper or computer receipts.

Clearly, such an option wouldn’t be feasible, since it would cost the U.S. government more gold than they’d get back, and as a result, the more than 20 percent of the world’s gold supply would continue to stay where it is.

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My email to Pastor David Whitney of the Institute on the Constitution after his June 9, 2010 appearance on Radio Liberty with Dr. Stan Monteith:

Pastor Whitney,

I heard your very educational presentation of the Fifth Amendment on today’s show with Dr. Stan.

You said that you read an opinion by Justice Scalia, who you say has written many good opinions in keeping with the Constitution, and that in it, he argued that Grand Juries are independent of the three branches of government.

You later said that those Justices who found in favor of the city of New London in Kelo v. New London (2005), finding that private property could be taken for non-public use, should be impeached for violating their oath to uphold the Constitution, specifically the Fifth Amendment in this case. I agree wholeheartedly with you on that.

Now, consider the case of Hamdan v. Rumsfeld (2006), where Justice Scalia upheld President Bush’s denial of the writ of habeas corpus to Mr. Hamdan.

Article I Section 9 of the Constitution includes:

“The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Given that:
1) The Constitution grants powers to, and limits powers of, the federal and state governments;
2) The privilege in question makes no mention of applying only to U.S. citizens, nor does the Bill of Rights;
3) There was no rebellion or invasion at the time;
4) Congress didn’t suspend the writ of habeas corpus through that provision;
5) The President takes a constitutional oath to “preserve, protect and defend the Constitution of the United States”;
6) Justice Scalia is a self-avowed “originalist;”

Do you agree that Justice Scalia should be impeached for his decision in that case, as you argued for those Justices who found in favor of the city of New London?


Jason Erb

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