one reason to prefer ‘public’ use takings versus ‘private’ use takings is that (historically, anyway) the set of projects that fall under a ‘public’ use is much smaller than the set of projects that might be a ‘private’ use. Clearly there are fewer schools than office parks and strip malls, &c.

Mikey: I think that internal political conflict between the parties is one of the reasons. I will accept that every state has increased its level of authoritarianism over the years. However, the federal government, which is constitutionally more limited than states’ governments, has grown larger and faster. If anything, the growth of the feds has increased the rate of statism among the states (by a federal homogenization). Also, states have their own constitutions, so that could have also helped slow down the authoritarianism.

So… libertarians are constitutionalists? There is plenty in the Constitution for anarchocapitalists to view with horror. Just because something agrees with constitutionalism or federalism doesn’t mean it’s a libertarian view.

A petitioner has just announced that he is filing to take Justice Souter’s house based on his eminent domain ruling!

http://www.menrohm.com/2005/06/hotel-to-be-built-on-land-owned-by.html

Comparing SCOTUS to the Nazgul insults the Nazgul. The latter might be evil, but at least they are smart and have a goal.

There is more than enough to do with resolving conflicts of law and clarifying things. That was the original function of courts. Interpretation was more like application. Now it is like making things up based on a whim or a fad. Or change the meaning of words from what they meant when they were written.

The legislature will pass contradictory laws – which apply and when? What happens when technology changes (do piano rolls violate copyright?).

What is there to stop state government from enacting all kinds of authoritarian laws?

As compared to what? The federal Constitution? The one that explicitly prohibited federal legislation except as to specific, enumerated areas, but was “reinterpreted” to allow it to wield any power whatsoever?

The better question is: what is there to stop the federal government from enacting all kids of authoritarian laws?

It sure as hell isn’t the federal Constitution.

Dan Kurry is wrong and confused. First, he maintains that the 5th Amendment does apply to the States; then he claims States are not required to respect private property rights. This makes no sense. If the 5th does apply to the states, then they are, in fact, required to respect private property rights–at least to the limited extent required by the 5th amendment (they have to give due process, take only for a public use, and pay just compensation).

But Kurry is flat-out wrong that the 5th Amendment–by itself–applies to the states. The 5th Amendment and the other provisions of the Bill of Rights were added to the Constitution in 1791 to make it clear that the new central state did not have the power to violate the rights enumerated, or any others for that matter. The framers–both federalists and antifederalists alike–would have been horrified at the notion that the Bill of Rights was a grant of power to the feds instead of a limitation on the feds. Kurry is confused: he is reading a limit on the feds as a grant of power to the feds.

Anyone who knows anything about the Constitution knows that the Bill of Rights does not apply directly to the States and never did apply until the 14th Amendment. Now, some argue that it “incorporates” the Bill of Rights–through its due process clause, or through its privileges or immunities clause. But as many scholars have shown, the idea of “substantive due process” (the incorporation of rights listed in Bill of Rights into the due process clause of the 14th amendment) is ridiculous; and as I argued in my article, it is also untenable to maintain that “privileges or immunities” was meant to be so broad to include all the rights in the Bill of Rights.

You know, when I get tangible feedback that I am actually changing people’s minds, it’s pretty gratifying (to use a Borkism). I received a bunch of emails yesterday and today to this effect. Look, for example, at this post by Thomas Luongo:

Patent and IP lawyer Stephan Kinsella has a great article this morning at LRC about the constitutionality of the Supreme Court’s decision in Kelo vs. New London. In essence, he is saying that the Supreme Court arrived at the right result with exactly the wrong argument.

His argument also contravenes something I spouted off on earlier in the week, and after due consideration must conclude that he is correct and I was wrong (something I suspected as I typed those words, but didn’t feel like checking into first). I made the statement that the role of the Federal Government was to protect the rights of the people from the depradations of indidvidual state laws, that is incorrect. And I thank Mr. Kinsella for clarifying that point for me. [...]

I had been waiting for a few days for LRC to chime in on this subject, knowing that whatever Lew decided to publish would be at once orthogonal to what the general buzz was and probably dead-on correct. [...]

And an email this morning from one Chuck Johnson:

That was a very thoughtful and provocative article. I must admit it gave me a lot to think about last night.

I appreciate the insight and the logically sound approach you took. You convinced me to reconsider my views of the Kelo decision and Supreme Court Power in general.

More to come.

Stephan:
Thank you for your education on this topic. The key problem, as I see it is that most people (myself included) are ignorant of the evolution of federal and state law, and the balance of power between the two. Nearly everyone, (including myself) believes that the Supreme Court has the final say on all legal matters including matters over which the federal government has no jurisdiction. For instance, everyone is used to state death penalty cases being appealed to the Supreme Court. People may be disgruntled by Supreme Court decisions, but if everyone believes that the actually have the authority (when in fact a strict interpretation of the constitution would indicate that they should not), the only change that we are likely to see is the push to fill vacancies with judges who continue to make flawed rulings, but flawed rulings that the administration making the appointments like.
In a perfect world, we would hope that all legal decisions are logically consistent and just, and that courts do not overstep their jurisdiction. However, there are others who argue the “Stare Decesis” doctrine. In other words rulings should be based on precedent. -it is more important to have a predictable opinion (based on a flawed precedent) rather than having each case judged on its merits from first principles.
There is an old Scottish saying that says “Better to know the judge than to know the law”.
Someone else said that “laws are interpreted by judges and not by historical scholars.”
We can argue that income tax is unconstitutional on the grounds that it was not properly ratified as required by the constitution. However, only the crackpot would refuse to file or pay taxes on this basis. What would happen if the Supreme Court actually declared that income tax was unconstitutional, even if it was the correct legal decision, and ruled that all income taxes payment from World War I onward had to be refunded? How many ruling would be overturned if the Supreme Court went back and reinterpreted every case based on a strict fundamental basis. Does anyone seriously believe that this scenario could actually take place, or are we debating how many angels can dance on a pinhead? Or to put it in more vulgar terms, the turd has become too big to flush!
My favorite legal argument comes from King Charles the First who was summoned before the House of Commons to answer charges of treason.

I would know by what power I am called hither … I would know by what authority, I mean lawful; there are many unlawful authorities in the world; thieves and robbers by the high-ways … Remember, I am your King, your lawful King.

As we all remember, King Charles the First was beheaded!
PS. Are you going to post your legal analysis of the recent internet file sharing decision?

Josh says:

From the text of Amendment V, it seems reasonable to extend it to the states even without the 14th Amendment:

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

There’s nothing in here constraining only the US. Regardless of how the Bill of Rights was intended, the text of this amendment is general.

The question is whether the Supreme Court is empowered to review and strike down state law. There is no doubt at all that the original Bill of Rights was not believed by anyone, or meant or intended, to limit the states. Certainly not to grant power to the feds; the Bill of Rights was just to limit the feds. Even the Supreme Court does not deny this; they needed the 14th to find an excuse to start regulating the states.

Consider. The fed gov’t is composed of 3 equal and independent branches. Each one has an independent obligation to respect the Constitution. The President has an obligation under his oath of office to refuse to execute unconstitutional federal laws (as Jefferson did in refusing to enforce the federal secition law). The Congress has an obligation not to enact unconstitutioanl legislation. The Court has an obligation not to enforce unconstitutional laws. To do this all the Court has to do is refuse to go along with it. It is part of the federal state. Its boycott of a law is an easy way for it to fulfill its oath of office.

But the Supreme Court is part of the federal government. It is not part of the states. It is not needed to enforce state law: states have their own courts and executives who do this. For the Supreme Court to strike down a state law, it can’t merely boycott it or “refuse to act”; in fact the states would love this. If the Supreme Court refuses to “enforce” a state law, that does not prevent the state’s own government from going ahead with it. So, to really strike down a state law, means the Supreme Court has to issue an order directing the agencies of that state not to do certain things; and this order is backed up by the military might of the United States.

Clearly this is an exercise of a power, and it must be enumerated in the Constitution. And it is NOT.

Further, it would also be wrong to say that the enumeration of a right in the Constitution implies a FEDERAL power to enforce it. Even if the 1st Amendment said, “Neither Congress nor the States shall make a law respecting the establishment of religion,” still, this would not give the federal courts power to strike it down. That would need a separate grant of power. Look at the 14th Amendment: it specifies what the states can’t do, THEN it gives Congress power to enforce it (not the courts, by the way). THe 14th itself implies that merely listing a limit or restriction on states does not in and of itself empower the federal gov’t or the courts to enforce this limitatation.

Further, consider the fact under JEfferson’s theory of concurrent review, each branch of federal governemnt has an equal and independent right to construe the Constitution. The Supreme Court is not superior in this respect; it is one of three. What this means is that on a horizontal level, all 3 federal branches have an equal authority to construe the Constitution.

On a vertical level, becuase of federalism (implied in the structure of the Constitution and the 10th amendment, e.g.) it is also easily arguable that states have an equal power with the feds to construe the Constitution. So if there is a limit on state action in the Constitution, then a state court, say, could use this as an excuse to refuse to enforce a state law (to strike it down). AGain, this requires the state court merely to abstain, to boycott the unconsttutional state action. But the fed courts are part of a federal governemnt which is one of enumerated powers. Not only would they need an enumerated power to even try to issue an order to the states based on a constitutional limitation on the states, there is no reason to think they are “more” competent or authorized at having the final say-so than the states are.

Just as the Supreme Court is no more of the “final say so” of what the Constitution says, with respect to, say, the President (which is why he has an obligation to refuse to execute an unconstituionla law even if Congress enacts it and the Courts bless it); so the federal branch (and its Supreme Court) is not the final say so with respect to state interpretation.

If the President and Supreme Court disagree on how to construe the Constitution, we might have a constitutional crisis. This possibility is inherent in having equal and independent branches of federal government. It is a risk thought to be worth having, in order to have the checks and balances that a tripartite division of government provides.

Similarly, if a state says it is not limited by a Constitutional provision, and the feds say they are–so what? There is no reason to think the federal interpretation of the Constitution has greater weight.

What this means is that the mere enumeration of a limit on state power, in the federal Constitution, even if it is explicit, does not in and of itself empower the feds to enforce their own construction of the limitation against the states; this conclusion is buttressed by the recognition that the vertical division of powers (federalism) in the Constitution implies that the states are equally capable of construing the Constitution with the states. And this is illustrated by the 14th amending having separate provisions for the limitation, and the power to enforce it.

The federal enumeration of a limit on States could be used, for example, by federal courts to chastise the states, while remaining powerless to do anything about it. It would be similar to a dissenting opinion–it criticizes the law that the majority refuses to strike down, without the criticism being efficacious at striking it down. And the provision could be used by state courts to strike down the state law. Just as the federal Constitution presupposes that individuals have rights against, say, murder, but assumes that states will have laws and police and enforcement mechanisms to vindicate and protect these rights, it is perfectly conceivable that the Constitution could presuppose that a federally enumerated limit on the States can be handled on the state level by the state’s own courts using it to strike the law down.

The recognition of a right, in sum, does not confer power to do anything about it–not in a government of enumerated powers.

Aside: My former law professor William Crawford makes a (mainstream) argument for the converse proposition here: Life on a Federal Island in the Civilian Sea, where he argues federal courts are “just as competent” at construing state law (when they need to) as are state courts. I don’t necessarily agree, but if this is so, certainly, it could be argued (even in mainstream fashion) that state courts are “just as competent” to construe federal constitutional provisions as are federal courts. This is a more of a legal view, than a political-constitutional one, but it supports my point above.

And yet a few more —

Dan Mahoney:

Great article on Kelo. It’s the only intelligent thing I’ve read lately on the issue of judicial activism. Those liberals who would claim that the Federal govt. is justified in intervening against state govts. commit the error of thinking that,
because the state govts. are non-liberal, the actions of the non-liberal Feds are justified.

Anthony Gregory has a nice piece on Kelo, Why the Supreme Court Should Have Just Shut Up. As I told T-dog: “But of course, I agree with you. I never said Kelo was a good decision. I am
saying like you, that in my view they should have just stayed out of it–”shut up,” as you call it. Also–I am responding to libertarians who oppose the decision on the grounds that the Constitution requires them to overturn the Connecticut law.”

Not a comment on my book, but in Congressman Ron Paul’s latest article, he concludes:

If anything, the Supreme Court should have refused to hear the Kelo case on the grounds that the 5th amendment does not apply to states. If constitutional purists hope to maintain credibility, we must reject the phony incorporation doctrine in all cases – not only when it serves our interests. The issue in the Kelo case is the legality of the eminent domain action under Connecticut law, not federal law. Congress can and should act to prevent the federal government from seizing private property, but the fight against local eminent domain actions must take place at the local level. The people of New London, Connecticut could start by removing from office the local officials who created the problem in the first place. [emphasis added]

Michael Gonsior:

For what it’s worth, I think your analysis of the Kelo et al v. New London case is right on. It’s too bad that the founders didn’t heed Hamilton’s protest against a Bill of Rights (Federalist 84) for, sans the 5th Amendment, I believe there would have been no implied federal eminent domain powers except for limited purposes — and only with “the consent of the legislature of the state in which the same shall be” — as specified near the end of Article I, Section 8. Of course, without the promise of a Bill of RIghts, the Constitution probably wouldn’t have been ratified (which, come to think of it, might have been a preferable result).

Regardless, the Kelo decision places no obligations on the states. As
Justice Stevens wrote at the end of the majority opinion, “We emphasize that nothing in our opinion precludes any State from placing further restrictions on the exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised.”

I should think libertarians would be pleased with a ruling that leaves
it up to the states to decide for themselves what “public use” and “just compensation” mean, rather than having these definitions dictated by the federal government. We should be more concerned about the limits placed on FEDERAL takings powers by the federal judiciary.

Dr. Thomas M. Schmidt:

Stephan,

Thanks for a well-written article. I joined the initial chorus denouncing the supreme Court’s decision, but then made the point that control was still exercisable locally. You have helped bring me back to my anti-federalist senses!

Dr. Thomas M. Schmidt
College Campus Chairman
College of Information Systems and Technology
University of Phoenix, Jersey City Campus

Laurence Vance:

Stephan:

Your article, “A Libertarian Defense of ‘Kelo’ and Limited Federal Power,” was probably your best ever. I know it took you many hours to write. Thank you for spending your time on it.

Masterful history lesson.I’ve been trying to follow the Kelo reaction on my blog at http://nalert.blogspot.com/
BEST
Alec

Joe Johnson:

Stephan,

I read with great interest your article entitled: “A Libertarian defense of ‘Kelo’ and limited federal power” . I must admit that I am intrigued. I took the exact opposite stand prior to reading it, and although I cannot state that I now agree with you, neither can I state that I disagree. I’ll be thinking about it for some time to come. [...] Again, I’m not saying that I disagree with your arguments, just that I have not finished thinking them through.

Joe Johnson, Trustee, Town of Frederick, CO

Rick Tucker:

Mr. Kinsella,

I am an Oklahoma real estate attorney. I read your defense of the Kelo decision at LewRockwell.com and thought it was excellent. I am sure I will refer back to it when discussing the Constitution and the incorporation doctrine. However, I disagree with your overall conclusions.

When I first heard the Kelo decision reported, I too briefly considered that to be consistent with my own reading of the Constitution, I must acknowledge that the ruling was the correct one because the Fifth Amendment does not limit the powers of the states. But the issue here is not intellectual consistency. As you stated, all nine justices accept the incorporation doctrine. The forces of centralization triumphed over federalism long ago. For how long should we continue to tilt at windmills? It’s time to let it go.

Our concern should be with the Court’s reasoning. The majority focused on the meaning of “public use”. The same limitation on the taking power of the government that appears in the Fifth Amendment also appears in the Connecticut constitution. You seem to go along with the majority in concluding that what might appear to be a private use can benefit the public and therefore in fact be a public use. I understand the argument, but I think it is a mistake to give into this deconstructionist logic. Words have meaning and purpose. In the Constitution, they have a LIMITING purpose. The Court first finds vagueness, then no meaning at all, which means no limitation at all. The Court does this all the time and this is how state power grows.

I was living in Little Rock while the city was buying up land to be donated for the Clinton Presidential Library. One property owner didn’t want to sell, so the city exercised its right of eminent domain to take it. The property owner pointed out that the city charter permits general revenues to be spent on the acquisition of property for limited uses and a presidential library (not to be owned by the city) wasn’t one of them. The city’s response was to designate the library a park, which was a permitted use. If the government wants your car and it only has the power to take boats, then your car which be declared a boat.

“The public end may be as well or better served through an agency of private enterprise than through a department of government – or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.” This is true and it might make a libertarian squirm a bit to hear the Court’s majority use this argument, but it really doesn’t matter how the public end might best be served. If Congress is left to make this determination legislatively, then the use of the word “public” in the Fifth Amendment is no limitation whatsoever. It’s like saying that Congress gets to determine what is in the “general welfare” of the nation.

You argue that it really shouldn’t make any difference to a property owner whether the property that is taken from him is put to a public use or a private use. A court can’t make that argument. The Fifth Amendment says “public use” and therefore it does matter legally. Secondly, it matters because we don’t want to entice people to seek to use the powers of government to satisfy their own whelms. It would be an invitation to corruption and people would be lining up to ask the government to transfer to them the property they were unable to obtain through freely bargained exchange.

Although it might not seem like it, I really did intend for this to be a letter of praise. Overall, I thoroughly enjoyed your piece. This is the first time I’ve been motivated to write to a LewRockwell.com contributor. I look forward to reading more of your work.

I replied: I don’t disagree, but look. I am not saying the 5th is not incorporated b/c the 14th was not propertly ratified. I happen to think this is so; but it has become a de facto part of our constitutional landscape. So this argument would be futile. But I do think a Justice has an obligation to follow his oath of office, and the Constitution. The decision was not a good one, but if I were Justice, I would have voted to uphold the law (actually: not overturn the law) on the grounds we have no authority to overturn it.

What is the alteratnive? That the dissent should have won? And used and seized power they were never granted to overturn a state law? I dissent.

Rick responded:

I see your point. If I were a Justice, I’d have a hard time voting to apply the 5th Amendment to a local government and still feel that I was abiding by my oath. I might have to become the Ron Paul of the Supreme Court. We both agree that the reasoning of the majority was awful.

[from anonymous]:

I just read your article …. It is a very interesting piece.

In Richardson, TX, where I live, there was recently an eminent domain brouhaha. I was awaiting the Kelo vs. New London case to come out and I read it on Thursday. It really bothered me because I kept thinking that the ruling is right, but for the wrong reasons, etc. etc. I read your article and it offers much to think about. Thank you for writing it.

Barry Conner wrote:

Mr. Kinsella,
I enjoyed reading your provocative article and agree with lots of your points. One point needs some clarification. In your concluding paragraph, you said, “Why would the state be able to seize property for the former but not the latter? Note: I am not in favor of state theft for any purpose .” What about the “takings” of the British colonies in America from Great Britian? And the taking of the Indian nations’ land? And the taking of the upper half of Mexico in 1845? And the taking of Hawaii? And Iraq? And Afghanistan? Of course the last two examples are still up in the air. The freedom fighters there (as always, both sides claim to be the freedom fighters) aren’t quite sure yet who has title, which is to say, which side has military superiority.

My point is that military might has made right throughout history. It settles all title searches, some short term and some longer. Basically all property of the USA was “state theft”, that is to say, takings. Once we understand that property belongs to the ones with the most force, the state, we have to find fault with with the oxymoronic term, state theft. It was never our property to begin with. We are renters with limited rights, share croppers, the entire lot of us. We work at the good pleasure of the true owners of the plantation.

One final comment, as “takings” go, the Kelo taking is pragmatically superior to some. Taking from the poor to give to the rich is the parable of the talents in action.

Comments?

Thanks again for your article. You have provoked a lot of thought.

I replied: “Thanks.All state takings are unjustifiable. All.”

Barry’s response:

Thanks for your comment. I agree. The place mankind must get to someday is to run the defense of property and life with a user pay and volunteer contribution system. The concept of taxation is the problem. We must some day stick a dagger squarely through the heart of it and kill it along with all other forms of enslavement.

Keep up the great work. You are making all of us think a lot harder.

Mike Holmes:

Your defense of the Supreme Court’s horrible decision is legalistic hair splitting.

Somehow you get back to the “state’s rights” view of the correctness of the verdict and somehow uphold this as a victory for the decentralized view of government. But your generalization is misplaced.

This is the same court which recently decided that you growing a medicinal (or recreational or industrial) plant in their own back yards for personal use was “interstate commerce” and could be prohibited by the federal drug Gestapo, regardless of state law permissions.

No, I don’t think there is anything going on her for de-federalization or recognition of the doctrine of individual state sovereignty. This court is made up of die hard statists, for the most part, who use quaint legalisms to rationalize for the state, just the state and nothing but the state, nearly all the time.

If this were a “good” decision it would merely be another in a string of cases limiting the power of the federal government to intrude in places properly reserved for the fifty states. But alas, no such cases exist other than as random outliers.

In case you haven’t been reading LRC long, the notion that the several states have any reserved powers or rights was abolished circa 1865.

And since none of the fifty states has the “right” to steal my property for the benefit of another, absent any pretext of actual public purpose or necessity, why should recognition of this bogus “right” be praiseworthy? Even if that is what the decision was about (which it wasn’t).

I realize you are not an apologist for statism and that contrary thinking is useful. But this sow’s ear a silk purse won’t make.

Mike Holmes CPA

My reply: Sorry, I’m not quite sure what your point is. Are you saying the supreme court should have overturned the state eminent domain law? If so, are you saying they have constittuional authority to do this, or that you don’t care? If the former, where, exaclty, is this power found? Surely you don’t think it’s in the 5th amendment, do you? if it’s in the 14th, please point me to it, as I have looked but cannot find it. (See how you can actually coherently stick to the point, if you really try?)

Palmer v. Kinsella on Federalism–hnn Kelo thread (copy on my site in case this one is deleted by hnn)