Even Lee Got Compensated
Brent Tantillo • November 4, 2009 • Uncategorized
I was shocked to learn in a fascinating article appearing in this month’s Smithsonian magazine that after the Civil War, the son of Robert E. Lee — Custis — regained Arlington after suing the federal government for an unlawful taking. In a federal jury trial — in Virginia — Custis Lee was found to have been deprived of his property without due process of law. The federal government appealed the decision to the U.S. Supreme Court, who also concurred with the jury’s decision, finding the requirement imposed by the United States of an “insurrection tax” to be paid in person to be a violation of the Lee’s rights. The Lee’s had made a good faith attempt to pay the tax during the war, however they obviously had to send a representative.
During the Civil War, Arlington became a cemetary for the Union dead, and to prevent the Lee’s from ever coming home, the United States built a fort on the property, and a freed slaves village, in addition to the cemetary. However, the Lee’s never gave up fighting for Arlington even after the war. They petitioned Congress, sued the government and 14 years after the Civil War had ended, Custis Lee resold Arlington back to the government for $150,000. That’s nearly $3.4 million in today’s dollars.
And the irony is, Custis Lee regained Arlington, despite what could have been easily argued to be a permissible taking by the Government for a legitimate “public purpose” — to protect Washington from Southern bombardment and to bury war dead (even if there was a fair amount of hatred of Lee for his decision to lead the Southern troops). However, in the post-Kelo decision era, a municipality can take your property for “economic development” purposes, not for a true and legitimate public purpose. With our now highly politicized court, if circumstances were similar, with an equally controversial and politically incorrect defendant, sadly, I am skeptical that the Justices would make the same correct decision.
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