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Source link: http://archive.mises.org/3757/supremes-right-on-kelo/

Supremes Right on ‘Kelo’

June 28, 2005 by

Actual libertarian legal scholarship: N. Stephan Kinsella on “A Libertarian Defense of ‘Kelo’ and Limited Federal Power.”


tz June 28, 2005 at 9:36 am

He is correct that the minority got it right for the wrong reasons, but they may not have enumerated every reason.

I don’t know if I remember a dissent that began “We have no jurisdiction, but…”.

If the Supreme Court didn’t think it had jurisdiction, it would not have taken the case. It does this capriciously, as some states rights are occasionally outside of its expansionist crosshairs, or it would be inconvienient.

I also suspect that neither side argued jurisdiction. If the defense doesn’t say the Supreme Court doesn’t have jurisdiction, the justices aren’t likely to address it.

On my blog, I just posted that I’m not even bothering to describe the recent spate of decisions, nor would I insult Asses by the comparison.

In one sense, the very fact of writing any article commenting on the court is giving it more respect than it really deserves. I doubt there were very many articles saying various capricious dictators were doing the right things for the wrong reasons on the rare occasions it happened.

hz June 28, 2005 at 9:46 am

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 June 28, 2005 at 12:18 pm

If I understand this article correctly, your constitution exists only to limit the power of your federal government.What is there to stop state government from enacting all kinds of authoritarian laws?

Manuel Lora June 28, 2005 at 12:33 pm

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.

Curt Howland June 28, 2005 at 12:39 pm

Mikey, you’re absolutely correct. Indeed such things did happen in the early days of America. States found that in order to compete with each other for trade and investment, they had to “liberalize” in the Austrian sense of the term. Protectionist trade barriers, for instance, caused trade to simply take a different route. The benefits of what is now called the “Laffer Curve” were well known.

The stated intent of the Constitution’s “Interstate Commerce Clause” was to make certain that no state erected barriers to people doing business with any other state, thus ensuring this competition.

However, one of the very real reasons for the institution of the Constitution over the Articles of Confederation is that there were vested interests who WANTED to prevent states from competing in the area of international trade.

There is a large body of work supporting the hypothesis that the Constitution was a successful counter-revolution by vested and moneyed interests who wanted to re-establish the merchantilist policies that the insurrection of 1776 threw out. One interesting detail is the number of signers of the Declaration of Independence who refused to have anything to do with this “Constitution” thing.

I found this page very enlightening:


Duodecimal June 28, 2005 at 1:32 pm

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.

tz June 28, 2005 at 2:07 pm

You can view abstract things like the constitution with horror, or look at utterly lawless areas like in some areas of Africa or South America, or even some inner cities here and see very concrete horror.

The Constitution was about as minimal a government for a large population and area and it worked for a while – though there were disputes from the beginning (another side of Thomas Wood’s history book and lectures show the lines weren’t clear even then). There was an error in the balance that allowed for some accretion of power, and then it inevitably accelerated, though I note it took a lot of blood (during the war between the states) to hold it together and the outcome was not foreordained.

Even so, if I remember right, the South didn’t propose amendments to move power toward the states – they didn’t want to dilute federal power for most of that period of history, I suspect they just wanted to wield it themselves or for their ends. They accepted a draconian fugitive slave law instead, and by the time it became evident they had to seceed, it turned into a war.

You can dream up fantasy Utopias, but there are plenty of areas of anarchy, as well as tin horn dictators in countries where a group might be enough to pay him to leave. Both are horrors now and don’t seem to spontaneously turn into anarchocapitalistic paradises.

Nor would I think such a society would last long – only until some dictator started to accrete power and the rest stood around minding their individual rights until the few free people that remained wouldn’t even be able to enforce them collectively if they could be persuaded to.

The market produces Microsofts and Wal-Marts – which ultimately limit my choices, but you will say that it is just the market and even if they engaged in monopolistic or anti-trust practices the market would still be able to fix it. But what happens if you apply this to those who supply violence or vandalism (security)?

When Acton noted the effect of power to tend toward corruption, he did not except market power.

I would also note libertarianism and anarchocapitalism are not identical.

Phil Kone June 28, 2005 at 2:21 pm

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


silver June 28, 2005 at 3:26 pm

Mr. Kinsella makes a good argument regarding jurisdiction but does not pursue it to its conclusion. One of the fundamental flaws of our government was reserving power to interpret the constitution to the Nazgul.* There could be only one result from that choice.

Every jury, without exception, should be free, in fact instructed, to consider the constitutionality of the law being used to persecute the defendant. Today defense lawyers risk their careers, even jail, for even mentioning constitutional questions in front of jury. That is wrong. I am not a legal scholar, and I don’t have a fully formulated opinion on the proper role of the Nazgul, but I am quite sure that their role as final arbiter of the constitution is an improper usurpation of power.


*I am following Lew’s lead regarding the use of ridicule and humiliation.

tz June 28, 2005 at 4:34 pm

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?).

Michael A. Clem June 28, 2005 at 8:01 pm

Duo: Some libertarians are Constitutionalists, yes, but many are not. The idea of state’s rights (for libertarians) is not principle-oriented, but more strategic or tactical, unless one wants to consistently implement the principle of decentralization even if that results in local authoritarian measures.
I think the jury is still out on this, but there is reason to believe that decentralization affords more opportunities for freedom than otherwise.
TZ: Of course libertarianism and anarcho-capitalism are not identical, but a lot depends upon how one defines “libertarian”. I think AC is the direct and logical result of following the libertarian non-aggression principle consistently in all areas, including the area of rights-protection.

George Gaskell June 28, 2005 at 8:50 pm

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 June 29, 2005 at 2:53 am

Kinsella almost has it right.

Indeed, the U.S. government is not granted the power of eminent domain (except in very limited cases), but neither is such power prohibited to the states.

The fifth amendment clearly does apply to the states by way of the Supremacy Clause of Article VI Section 2, which reads:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

The Supreme Court is given power to rule in such cases by Article III, Section 2
, which reads in part:

The judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

The Constitution is the supreme law of the land. The Federal government is granted the power to rule on that law. The fifth amendment, violations of which are triable by the Federal courts, clearly applies to the states by limiting their power to seize land.

The problem is not that the Federal courts have no jurisdiction to review state eminent domain exercises; it is that the states are not required to respect private property rights. One improvement is that proposed by LandRightsBill.com, viz. state constitutional amendments restricting eminent domain.

Stephan Kinsella June 29, 2005 at 9:35 am

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.

Stephan Kinsella June 29, 2005 at 10:11 am

Eva wrote:

What the Constitution does say is enough. IF someone’s property is to be taken it must be done in a way that provides the owner the actual value.

This is NOT what’s being done anywhere in this country, regardless of whether its state or federal. Folks are subjected to twisted “blight” studies that downgrade the values so they only get pennies on the dollar. The only reason this option attracts private interests is because they can get the land for a song. If it really were the entire value of the property, (which our federal govt should be enforcing…can you picture this administration’s attorney general enforcing it?…right), they would do just as well negotiating directly with the property owners.

Our Fed. govt has dropped the ball, as clearly the
courts have dropped the ball, in favor of short term quick fixes that will end up having disastrous consequences for everyone.

Your legalistic response indicates there are still
Libertarians out there who really should return
to the Republican fold.

My reply:

Your anti-intellectual response is sad. Maybe you don’t care if the federal government disregards limits placed on it in the Constitution, but I do, since I would prefer a limited government to an unlimited one.

Where, pray tell, does the Constitution authorize the federal courts to swoop down and meddle in state affairs in this manner? Where does it ever specify that a state law takign private property is a violation of the Constitution? The Fifth Amendment is a limit on federal power. This is uncontroverted. Only ignoramuses contend otherwise. The only possible argument that the limits of the Fifth Amendment apply not only to the feds, but to the states, is that the 14th Amendment “incorporates” the 5th amendment. In other words, you need to point to the 14th amendment to show this. Can you? I’ve looked. It ain’t there. Put up or shut up, how about?

Stephan Kinsella June 29, 2005 at 10:55 am

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 Kinsella June 29, 2005 at 11:35 am

A comment–I noted the following to Walter Block and he suggested I add it to the article; it’s too late so let me put it here:

In my view, it’s intellectually dishonest to say that the feds do have jurisdiction under the Constitution. But I would respect, say, an Objectivist or libertarian who holds this view of Kelo:

“If I were on the court, I would rule as follows: no, the Court was not granted jurisdiction under the Constitution; but the Constitution is dead, and so is federalism. In this case all we can do is recognize we live in a Hobbesian world, where we can only hope to make ad hoc improvements in liberty. Therefore, I will vote to overturn the law solely for the sake of the victims here; even though I have no Constitutional authority to do it, and even though it helps push us in a more centralized direction and even though this power we are now seizing will no doubt be misused sometimes to make the wrong decisions and impose them on the nation as a whole. My fellow Justices don’t respect the Constitution, my fellow citizens don’t, even Connecticut does not respect its own constitution–so I’m damn well not going to be bound by it to tie my hands and prevent me from at least helping out the Kelos.”

In other words, if a given libertarian would prefer to be results-oriented and vote in favor of some individual victim’s liberty in a particular case, damn the consequences, fine; but he should not pretend this decision or reasoning is backed up by teh constitution. That is dishonest.

I will also mention here a quote from Bork’s book The Tempting of the Law–where he quotes from Robert Bolt’s play A Man for All Seasons. Not that I am a huge fan of “the rule of law,” or Bork for that matter, but there is something to this, that can help inform our debate here:

… in the play’s greatest passage, [Bolt's Sir Thomas More] argues for the centrality of the law, over and against men, in the governance of human affairs, when his family wants him to have the disloyal [solicitor-general Richard] Rich arrested:

Wife: Arrest him!

More: For what?

Wife: He’s dangerous!

Roper: For all we know he’s a spy!

Daughter: Father, that man’s bad!

More: There’s no law against that!

Roper: There is, God’s law!

More: Then let God arrest him!

Wife: While you talk he’s gone!

More: And go he should, if he were the Devil himself, until he broke the law!

Roper: So, now you give the Devil the benefit of law!

More: Yes! What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat?

This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down (and you’re just the man to do it!), do you really think you could stand upright in the winds that would blow then?

Yes, I’d give the Devil benefit of law, for my own safety’s sake!

Walt D. June 30, 2005 at 12:25 am

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?

Wild Pegasus July 1, 2005 at 2:41 am

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 Constitution does, at times, constrain only states (Art. I, Sec. 9) or only the federal government (Amend. I). But the language in amendments 4, 5, and 6 is different from the language in art. I, sec. 9 or amend. I. This leads me to think that these amendments should be understood to do different things than either of those other parts.

In these amendments, the language is general: “no person”, “right of the people”, “in all criminal prosecutions”, etc. Because the Constitution is the supreme Law of the Land (art. VI, sec. 2), these amendments supercede the states. Hence, even without the 14th Amendment, New London would be violating the 5th Amendment by taking private property for private use.

I realise that this is not the historical understanding of the Bill of Rights, but it is one consistent with its text. As Justice Scalia loves to point out, legislative intent is mostly a myth. The text is not.

- Josh

Stephan Kinsella July 1, 2005 at 12:18 pm

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.

Stephan Kinsella July 1, 2005 at 2:56 pm

A few more comments on and interchanges regarding the original article:

Pete Hendrickson:

You are the only commentator on this subject that I have read thus far who has actually gotten it right– and deeply right, at that. Nicely done. -Pete Hendrickson,

Herbert H. Blount, Jr., Esq.:

I just wanted to let you know that I appreciate, and agree with, your analysis. Nice job.

Karen Buckley:

Thanks for the helpful article on the subject elucidating the limits of federal power over state eminent domain laws. You have given me a more correct perspective. Indeed, all “takings” by whomever to whomever are theft.

Joseph Sugarman:

Dear Sir, It will take me several readings of you comprehensive analysis to begin to digest and understand your thoughts, completely. A quick perusal, however, causes me to comment on a fact which, even you, have not mentioned. The Connecticut Satute in question ( cite omitted), in specific language, gives the power of emminent domain in takings for commercial purposes. The people of Connecticut, as is the case with most of us most of the time, were asleep at the wheel when this was done; and apparently have never raised any challenge to the statute as written.

Chris writes:

Mr. Kinsella,
Interesting take on the ruling of Kelo vs. New London.I’m not a legal scholar,so tobe honest I couldn’t follow most of the arguemnet about the
14th amendment-to be honest I’ve always felt it was written vaguely to provide the feds an excuse for anything they felt like doing.
I maybe wrong, but I tok the ruling to mean that the Court could only rule on wether eminent domain takings follow that states law. And it is properly a states matter,not the feds place to decide what is public usage for a particular state. Given that,it would be up to each state to determine what is/not public use.

The question would seem to be “does a government have the right to ensure its survival at the cost of it’s citizens”. Badly worded,yes, but it just came to mind and I haven’t had time to think it through. Off hand I would say no. Since a good portion of my city’s budget goes towards keeping the unionized city workers happy,50% of the city workers pension comes from city tax dollars, etc,etc. I’m sure you know all the ways that city governments waste money.

I’ll have to reread your column later. It was nice to see that someone else doesn’t think that K-v-N.L. isn’t the end of the world either.

Manuel Lora:

Great great work. This will really drive them nuts!

And another:

While I am not a Libertarian, this article expesses my views exactly (I’m familiar with Pilon’s work, but Berger’s Government by Judiciary is what I consider the final word on the subject). You’re the only one I’ve seen who’s written what I believe to be the correct analysis on this recent decision. Well done.


John Robillard
Chairman: Constitution Party of Mn.

Clint Case:

Mr. Kinsella,

I enjoyed this argument and agree with you entirely.

Too bad we are a libertarian minority. Too much screeching and moaning and not enough action.

Good work. Look forward to more from you. Write a book !!


I agree with you – the US SC should not trump state courts. What worries me is that now every state in the “union” falls under the decision, not just the poor souls in Connecticut.

Scott Fields:

Mr. Kinsella,

I was pleased to read your article titled “A Libertarian Defense of ‘Kelo’ and Limited Federal Power” this morning.

Many of my friends were aghast with how could I support the Federal ruling on this.

As you have stated, I support the decision, not the reasoning. To believe the Federal government has jurisdiction over a local matter such as this mandates a belief in the 14th Amendment. However, your article goes into much more detail in regards to the depth of applicability of the 14th Amendment.

You did elaborate on one part I wish I had. Yes, the Federal government is limited by the 5th Amendment in it’s actions in regards to the invokation of Eminent Domain. However, “Berman v. Parker” for the most part destroyed the meaning of the 5th Amendment in regards to Federal actions.

I think most Libertarians (and anyone concerned with the assurance of the protection of personal property) view this case as applying that case to the state level. In effect, even if it hadn’t been argued before, the 5th Amendment as the government views it, now applies to the states.

I view this as a failure of the state of Connecticut, short and simple. What I don’t understand is why Connecticut upheld the Eminent Domain ruling. The state Constitution of Connecticut states the following in Article 1, Section 1 (and I state this in my article).

All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.

It seems clear to me that by acquiring this land for private use, even though the property would ultimately be open for public services, this actions elevates the private citizens who would be acquiring the property over the original owners. That sure seems to be the case with this issue.

Anyway, thanks for the detailed treatment of this case.

Mark Watson:


I read your article posted on LewRockwell.com and I am glad I read it. A few points I want to make, but first I want to say how much I appreciate every chance I get to remind myself that I am right and the rest of the world is living in a dreamworld with respect to the framers intent of Federal Power. The Zeitgeist is that the Federal Government is the top of the apex or Pyramid, and then its agencies (IRS, FBI, HomeLand Security etc) then the states, and then their agencies, and the rest of us slubs are like little atlases, carrying the weight of this monstrosity. But somehow in this system, they still “work for us.”

Of course you gave textbook on the framers setup, with only enumerated power to the Federal government, and that even the Federalists were worried by even listing a Bill of Rights we would have what we now have today.

So they were right for the wrong reasons. They should have shut up and gone home- but no, they had to comment anyway.

So now the problem is, this whole public use clause.

I know how it works in my city, the developers in town cozy up to the school boards (bigger public schools and larger developments mean more taxes) city councils, planning and zoning, mayors, governors, etc. These are the Titans they talk about in Business First.

What has happened in Kelo is that 1) The Federal Government has usurped power not granted it by the Constitution because it heard the case- and made a decision. Any decision- for either party constitutes a usurpation. This you fail to give enough enormity to in your piece except to say that there are so many ways the government usurps its power this is, in your view, a minor one. Future Justices on the Supreme Court will use this law as precedent for future bad law- just as is happening now with the 14th amendment. What will Kelo do to us again in 50 years?

2) In deciding for the commission, it gave additional weight (indeed Supreme weight) to the finding of the lower court, by backing them up. In this way, future cases that will be decided in lower courts will look to this decision and say that ultimately, since the Supreme Court supported this case before, they should do it again- which weakens the libertarian cause at the local or state level- where we need it most. Indeed, we need more people willing to take a stand locally and who think intelligently on the issue of takings with first regard to individual liberty.

(Recently we had a city council in a neighboring city decide that they knew what is healthiest for us in the entire metro area- so they ruled that smoking was now illegal in bars and in public places, – any place of business that lets the public in for example. This decision was early last summer and by the time fall came around, there was a can the ban initiative. Well it failed. Why? Because the voters deferred to the learned city council who had the backing of all the local government, university, etc. Cries of foul all around were heard- this time it was not “but we want to smoke” rather- its not fair that my customers go out to the suburbs where they can smoke! Then we saw city councils all around the metro fall over and ban smoking. The solution was equal misery. As of November, now the plan is to go statewide!)

I think it is time we nail down the definition of Bad Behavior with regard to the Supreme Court. We need to get rid of Lifetime Appointments.

Rolling over and Taking it as we seem to do day after day, will therefore be the inertia in the next case- or every situation that does not make it to trial. Every city has many developer relationships, but few of us stand up for our individual liberty- for that, I do not think it follows that we deserve what we get- even though in some ways I might agree with that sentiment.

I might have been more sympathetic if the court had held for the property owners- but that too would have strengthened my first point- in directing individuals to seek Federal Supreme Court cases for these issues as they come up, and strengthening the Zeitgeist even more.

I disagree with this decision by the court for the same reasons I disagree with a Federal Marriage Amendment- Imagine the Bureau of Alcohol, Tobacco, Firearms, and Marriage. Were you married by a Federally recognized clergy or in a Federally recognized church? If not- your single again. Soon I see democrats using a FMA to require christian churches to marry homosexuals- or be defrocked! I did vote for my Ohio Marriage Amendment, just as I would like to live also in a Pro-Life state- but it is not possible under the tyranny of Roe v Wade. Life is not any better under the patriot act.

I did not vote for Bush or Kerry in the last election.

My reply to Mark: I don’t disagree with you. Even this decision was a usurpation, I agree, b/c they all agreed they had the jurisdiction, because of the erroneous understanding of the 14th. But I did not endorse their holding or reasoning. I only said that the Court should have refused to overturn the Connecticut law–on the grounds that they had no jurisdiction. If they had done this, it would have ameliorated many of your concerns, no? Mark’s response:

You may post my email and reply. Thank you. I hope I would not be caught up in the victory march had Kelo been decided for the other parties. There is a continuing problem with conservatives who celebrate victory for their cause while trampling over liberty. It seems the ends justify the means for conservatives and republicans, as well as liberals and democrats. I make the point deliberately because labels don’t mean what they used to.

I see where we agree, but I believe the matters of degree (this usurpation they do is not as bad as that usurpation they do) is apathy, and it has also contributed to the problem. When have we crossed the bright-line of tyranny that causes us to defend our liberty? The tea tax led to the Boston Tea Party – I think that was a mere 2 cents! What percent does the IRS and its accomplices tax us today? And yet we roll over and take it. We can’t board a plane without getting felt up by the state or forced to strip naked. Now they have technology that will virtually strip search all of us!

It seems whatever liberty the government would like to appropriate from us, it will take without asking, and if you would like it back- what will you do for your government in return?

Stephan Kinsella July 1, 2005 at 3:05 pm

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:


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:


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/

Joe Johnson:


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.


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?)

Wild Pegasus July 5, 2005 at 3:32 am

Unfortunately, this response will be buried under Kinsella’s mail…

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Art. VI, cl. 2.

The Constitution and the US’ pursuant laws are the supreme Law of the Land, superceding all state constitutions and state laws. What “supreme Law of the Land” means in practice has probably never been defined, but to me it certainly means that the US has the power to bind the states when the states act contrary to the Constitution. If the Congress can pass supreme law, the Executive Power certainly includes the authority to enforce that law. What would “supreme” mean if the US did not have the power to enforce?

We see that the federal government does have that power: the legislative, executive, and judicial power of the United States is in the federal government. And the United States is empowered to pass laws pursuant to the Constitution that are superior to the states.


…[The President] shall take Care that the Laws be faithfully executed… Art. II, sec. 3.

This isn’t an unlimited grant of power (see Youngstown Steel), but it does mean something. Since the Constitution is part of the supreme Law of the Land, it is a law that needs to be faithfully executed. If a state is violating the Constitution in its practices, say, by violating the right to probable cause for a warrant, that state isn’t faithfully executing the laws. The President must take care that the Fourth Amendment be faithfully executed. Since the Fourth Amendment is supreme over the actions of the state, the President has the power to shut down that state action. What else could “take Care” mean but to use the executive power?

Again, I realise this isn’t the historical interpretation of the Constitution, but it is consistent with its text.

You might think this means that the US could pass anything pursuant to the Constitution and enforce it on the states. And I would say that’s absolutely correct. The limited, enumerated powers deal only with subject matter; the power to enforce and adjudicate is wholly given.

As to phrases such as amend. XIV, sec. V, I think it just adds another avenue of enforcement through which the federal government may act. Congress can get in on the fun instead of leaving it all to the executive and judicial branches.

- Josh

Stephan Kinsella July 9, 2005 at 1:54 am

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

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