We the people of the United States,  in order to form a more perfect Union,  establish justice,  insure domestic tranquility,  provide for the common defense,  promote the general welfare, and  secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. (Preamble to the Constitution of the United States of America)
These are the very foundational principles of America, which is simultaneously a physical country as well as a philosophical ideal. The first thing we should note is that the U.S. Constitution was written for the people. It was written for all or the whole of the people. It was not written so that a small minority of elites nor even any minority could seize power and send the country off in whatever directions that small minority desired. It was not written so that we could devolve into government of the bureaucrat, for the bureaucrat and by the bureaucrat. The Constitution was specifically designed to keep such things from happening. Currently, only the people gathering together can restore America – and Zone B – to its rightful heritage.
When we compare the original Constitution with the historical ordinance’s aims, we find several discrepancies and differences. Of the six reasons the Constitution was written, Lincoln’s historical ordinance stands in contrast to four of the foundational reasons for why and how our country is as great as it is. The other two are simply inapplicable to the areas of law the historical ordinance touches upon.
-  establish justice Is it justice when an old woman must rebuild her chicken coop to conform to the historical ordinance but the wealthy homeowner, especially when he is the chairman of the historical board, can build his entire house or barn in complete disregard of the architectural standards of the Territorial period? Is it justice when more than one struggling homeowner has been forced to leave their cars, trucks and other equipment out in the weather (where hail damage is particularly hard to financially recover from) because the ordinance says that tourists are not allowed to see carports or anything like that, all while the wealthy are able to safely ensconce their equipment in garages (that sometimes contradict the ordinance)? Is it justice when a wealthy homeowner is required to spend $10,000 for a ordinance and board required fix and this amounts to perhaps 10 to 15% of their annual income when a poorer homeowner doing the same board required fix might be required to spend as much as 50 to 75% of their annual income? No. The historical ordinance is not used to establish justice!
-  insure domestic tranquility The 2004 revisions of the historical ordinance were conducted precisely because the ordinance and its enforcement were disrupting domestic tranquility! The ordinance was revised precisely because many people recognized that the Lincoln County war might start up again! In spite of the revisions, however, the ordinance has allowed the board to cycle around yet again to an abusive, oppressive, wealthy elitist mentality and it is time to simply recognize that the ordinance is a failed experiment (at least in Zone B!) because it departs too far from too many foundational American ideals and is yet again inevitably disrupting domestic tranquility.
-  promote the general welfare The historical ordinance provides privilege and places of petty power for the elite few who believe themselves “preserving history” and those businesses and homeowners who make a profit because of the privileges granted by the ordinance and its unequal application. The historical ordinance does not promote the general welfare but only the welfare of a privileged class.
-  secure the blessings of liberty to ourselves and our posterity Life in the historical district is certainly not about liberty but about being controlled and oppressed into conformity with a hypocritically applied and historically non-existent standard. The historical ordinance steals the blessings of liberty from the people!
The ordinance stands in direct contrast to four out of six - two thirds! - of the reasons upon which this country’s enduring government was founded! It is entirely and completely opposed to every basic premise which it shares with our Constitution! It is difficult to explain all this away as merely stemming from complete legal incompetence!
“A law repugnant to the Constitution is void.” (Marbury vs. Madison, 1803)
This case is one that all law students are required to know!
Further, the Bill of Rights (the first 10 amendments to the U.S. Constitution) were considered so necessary that many of the colony states refused to ratify the Constitution until they were promised that the Bill of Rights would be attached. The fifth amendment requires the government to compensate any property owner whose property is seized by the government.
But in the Lincoln Historical districts, even though the government enjoys control over what a person’s home will look like, no “just compensation” is provided. Instead, the Zone B properties (which are not even historical) are forced into subservience to the Zone A historical properties and are required to provide drive-by, visible ambience, atmosphere and western environment for the tourist traps of Zone A – often at great expense to the Zone B property owners and always without any just, due compensation from the government who upholds and enforces the ordinance. Still further, the poorer owners are disproportionately burdened for these expenses more so than are the wealthier owners in the same way a food tax impacts the poor much more so than the wealthy.
Though what occurs in Zone B is not a complete seizure of property as the amendment directly addresses, there certainly ought to be some measure of reward or at least incentive for the Zone B owners who are forced to support the Zone A tourist trap owners in their pursuit of life, liberty and happiness! Partial seizure of property without just cause or due process is just as immoral as is total seizure.
This question is made more complicated by the 1970s and since Supreme Court rulings that historical buildings are exempt from this 5th Amendment protection. The argument is made that since genuinely historical buildings are irreplaceable and historical societies were unable to pay enough to preserve them, the government could declare buildings historical without compensating the owners. But what is lacking in Zone B is both historical significance and any truly historical buildings. The majority of buildings (modern homes) have only received “historical” labelling by the local, untrained, unqualified, biased and politically-motivated board members. The few buildings that have any possibility of true historicity, most of which are crumbling ruins that a modern homeowner would face code enforcement issues of nightmare proportions to repair or rebuild and which never had anything historically significant happen in them anyway, does not justify the 10 square miles enslaved as a secondary historical district for the benefit of Zone A businesses.
In other words, since Zone B does not have genuine historicity (but has only an illusion of historicity sufficient to fool a tourist or a “historicity” devotee, especially one from back East) it is simply not entitled to the legal protections given to historical districts. Arguably, any loss incurred by any homeowner because of this ongoing enforcement of historical standards upon a non-historical zone should be reimbursed. If anyone can prove that this enslavement of Zone B was really always and only a financial scheme to raise property values or to provide security for the handful of businesses in Zone A, punitive damages should be awarded as well.
In short, anyone who thinks or says Lincoln’s historical ordinance has anything to do with American values is either delusional or an outright traitor to their country.
“A law repugnant to the Constitution is void.”
The historical ordinance is repugnant indeed!