Illinois governor signs pension overhaul into law

[happyslug]

20. It is the right to property AND the Ban on States impairing contracts.

Last edited Fri Dec 6, 2013, 02:38 AM - Edit history (1)

First let me address the issue of Contract Law.

Under Article 1, Section 10, First paragraph of the US Constitution:

No State shall ... pass any ..... Law impairing the Obligation of Contracts,....

http://www.archives.gov/exhibits/charters/constitution_transcript.html

A pension is a Contract, and often the result of a Union Contract, Thus under Article1, Section 10, First paragraph it is unconstitutional for Illinois to impair contracts, and given the Pensions were the result of Contracts (including the Contract to work for the State) Illinois can NOT reduce these pensions, The Courts will have the final say on this but it is complex for the actual case law is minimal for most States have avoided impairing Contracts ever since 1787.

Now to the second Argument, the taking of property:

Amendment V

No person shall be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

Now Technically, the Fifth Amendment does NOT apply to the States, it is in the Federal Bill of Rights and as such Rights from the FEDERAL GOVERNMENT. Now, after the Civil War the Federal Government passed the 14th amendment:


AMENDMENT XIV

SECTION 1.

..... No state ... shall.... deprive any person of life, liberty, or property, without due process of law.;

http://www.law.cornell.edu/constitution/amendmentxiv

It is through the 14th Amendment that the Bill of Rights is applied to the States, but in this case we can ignore the Fifth, for the 14th by its own language applies the same rule to the states directly.

Thus a question for the Courts will be is this reduction in Pensions a Taking of a Property Right without Compensation? Now the 14th does NOT mention Compensation, but the Courts have always recognize the right of the State to take property with compensating. The Courts have also order States to undo things it has done, that the Court found to be a "taking" of property and thus depraving a person of the right to use that property.

You have to understand the Courts have long ruled that a property right is any right based on a grant from the State. The deed to your home, is from a prior owner who received a deed from another prior owner and this goes back and back till we come to the first sale of that property from the State (or the Federal Government if the State was still a Territory) to someone. That sale was a Grant of a Right to property as set forth in that first deed. Every other seller after that sale, was only selling his right to that grant of property.

When it comes to Civil Service Jobs the Courts (both Federal and State) have viewed them as a Grant of Property from the State. The Job and pay was authorized by the State and as such is a grant of a property right to that job. The courts have long ruled that such grants of property did NOT include the right to sell the position (This the job can NOT be resold), but the courts have also long called it an legally enforceable property right. There are restrictions to that property right, for example the State can eliminate it and the job holder would be out of a job (but it has to be a real elimination, not one where the job is eliminated and another created that does the same thing).

Now, in higher position the positions tend to be Patronage positions and it is understood no permanent right to hold those position came with appointment to those position (i.e. elected official can pick the staff around them and Cabinet positions that direct where the Government is to go, but to the people who do the actual work, they can only be fired for Good Cause, i.e. they did something illegal).

Just a comment that if the Courts rule this reduction in the Pension is a taking of a property right, it will have to be either undone or otherwise paid for the lost of the Pension. That is if the State gets over the issue of impairment of Contracts. The Federal Government can impair contracts but the States can not under the US Constitution.