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“A Libertarian Defense of Kelo and Limited Federal Power”

A Libertarian Defense of Kelo and Limited Federal PowerLewRockwell.com, June 27, 2005.

See also:

Federalism and Libertarians on Eminent Domain

Center Urges U.S. Supreme Court to Protect Property Rights notes the friend-of-the-court brief filed with the U.S. Supreme Court by the presumably libertarian Center for Individual Freedom and Pacific Legal Foundation. Seizing property by emiment domain (“condemnation” or a “taking”) is considered constitutional if (a) it is done for a public purpose, and (b) adequate compensation is provided. The brief argues that the Supreme Court should prevent local governments such as cities from seizing private property under the guise of promoting economic development–i.e., that such takings are not really for a “public purpose”.

The problem with the brief is that it accepts the view that the federal Constitution’s due process limits on eminent domain apply to the states as well as to the federal government. But this flies in the face of federalism. I’ve discussed the importance of federalism before–in Supreme Confusion, Or, A Libertarian Defense of Affirmative ActionSandefur and Federal Supremacy, and In Defense of Evidence: Against the Exclusionary Rule and Against Libertarian Centralism–one of these in response to Timothy Sandefur, one of the authors of the brief.Of course state or city action that takes private property is unlibertarian. It is theft. This is true even if the owner is compensated and the taking is for a public purpose; and it is certainly true if adequate compensation is not paid or if the taking is not for a public purpose.

However, the brief accepts the logic that the Fifth Amendment–which originally limited only the federal government, not the states–has been “incorporated” by the 14th Amendment to apply to the states. First, note that the Fifth Amendment states: “[no person shall] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

This was part of the Bill of Rights enacted in 1791, two years after the Constitution was ratified. It is universally accepted that these limits and others in the Bill of Rights limited the federal government and not the states. For example several states in 1791 actually had established religions (e.g., Congregationalism), and were not in violation of the First Amendment, which only prohibited the Feds from establishing a religion. In fact, for the Fifth Amendment’s limits to “apply” to the states in effect is a type of grant of power to the feds to enforce this limit as against the state. I.e., to say any of the rights in the Bill of Rights apply to the states means the Bill of Rights–meant to limit the power of the new federal government–is really a grant of power to the feds. This is absurd.

The theory now is that the 14th Amendment, which followed the War to Prevent Southern Independence and does apply to the staes, “incorporates” most of the rights in the Bill of Rights and applies them to the states. This theory, which in my view is groundless, confused, unlibertarian, and undermines federalismt–an important structural feature that limits federal power–is endorsed by “centralist” libertarians such as Sandefur and Roger Pilon of the Cato Institute (see my articles linked above for more detail on all this).

The theory of incorporation–not even invented until about 50 years after the 14th Amendment was illegally ratified–is especially absurd in the case of the 5th Amendment. This is because the 14th Amendment itself provides, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” I.e., it has a Due Process clause. It prevents states from violating due process rights. Yet the Fifth Amendment, as noted above, provides, “[no person shall] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”. I.e., it protects due process rights. But if the 14th Amendment “incorporates” the Fifth Amendment, it already protects citizens’ due process rights from state infringement; so why would the 14th mention the due process right again? Moreoever, what is even worse is that the theory of incorporation says that the “due process” clause of the 14th amendment is what does the incorporating! It is a clearly “procedural” right yet it is ridiculously said by the Supreme Court to protect “substantive due process”. So we have the “due process” clause of the 14th Amendment being used to invent a federal right against the states to “substantive” rights, which includes the Fifth Amendment which alreayd had a right to due process! It just makes no sense whatsoever. It is clearly just a federal judiicial invention with the aim of seizing more power against the states.

The Center states “‘The Constitution does not allow the government to use eminent domain to take property and sell it to the highest bidder in a play to pocket greater tax revenue,’ said Reid Alan Cox, the Center’s Assistant General Counsel.” The Brief itself states that the Constitution “prohibits citizens from using the power of eminent domain to take their neighbors’ land for their own private benefit.” But this betrays the libertarian-centralist view. It says “the government” without distinguishing between state and federal. It wrongly states that the Constitution “prohibits” certain uses of eminent domain. This is not true. The Constitution establishes the federal government, gives it some powers, and limits these powers. It does limit the feds’ use of eminment domain, but not the states’. At most one could say that the Supreme Court’s (confused, non-legal, and unlibertarian) interpretation of the Constitution does this, but that does mean it is in the Constitution. It is not.

Cato on Kelo; archived comments:

I’ve previously argued that the Constitution does not (and should not) prohibit state takings that violate standards in the Fifth Amendment (see: A Libertarian Defense of ‘Kelo’ and Limited Federal Power; also More on Kelo and Federalism and related links here.

In today’s Cato Daily Dispatch, there’s an item entitled “Property Owners Win Big Ohio Ruling”:

“In a signal embarrassment for the U.S. Supreme Court, the Ohio Supreme Court ruled unanimously Wednesday that a Cincinnati suburb can’t use eminent domain to take private property for a $125 million multiuse redevelopment, Investor’s Business Daily reports.

“It was the first challenge of a city’s right of eminent domain to be decided by a state high court since the U.S. Supreme Court ruled last summer that economic benefit constitutes ‘public use’ under the Constitution.”

In “Eminent Domain Blinds Bureaucrats to Their Duty,” [libertarian centralist/Lincoln idolator] Timothy Sandefur … writes: “Nobody’s going to invest in a place where property can be stolen, or condemned, at any moment. In fact, experience shows that redevelopment doesn’t require the use of eminent domain. Seattle recently completed a major redevelopment project without it. Even the Disney theme parks were built without using eminent domain. Unfortunately, eminent domain abuse not only blinds officials to the possibilities of free-market development; it also distracts them from their legal and ethical duties.”

Was the ruling an “embarrassment” for the feds? Well, in a way, I would argue Cato is partly right here: the state court “got it right” in construing the “public use” standard of its own constitution in a narrower and more common sense way (I assume; I have not read the decision); whereas the Supreme Court stretched a similar standard in the federal Constitution beyond all recognition to include certain private uses. Of course, it is not considered unconstitutional for a state to give citizens more rights than the federal Constitution requires; only if it denies those baseline rights. And a state may construe its own constitutional rights grants more broadly than the same language in the federal Constitution. So it is really not an “embarrassment” for the states to rule differently than the feds; or to grant greater rights protection. This is an expected result of our federalist scheme. But you wouldn’t expect centralists to recognize this.

In fact, this case undercuts the hysteria over the Kelo case, which argued that because the feds will not stop states from allowing private-use-takings, this endangers property rights. Under this view, held by Sandefur and other centralists, the central must state to have power to strike down state laws it dislikes, on the grounds that property is not secure otherwise. You don’t want a situation “where property can be stolen, or condemned, at any moment,” after all. But this was the attitude of various libertarian Constitution- and federal government-worshipping centralists, including many Objectivists: Kelo spells the “end of property rights,” breathlessly said many a centralist.

This central-state-worshipping view rests on the notion that our only real protection from state or even federal action lies in the paper federal Constitution-as-construed-by-the-federal-courts. It is a view that ignores the many other structures and limits on state action: there are horizontal separation of powers (the tripartite division of government, at both the state, and federal, level); bicameralism; supermajority requirements; written constitutions; bills of rights; democractically elected legislators; and, as this case shows, federalism, or vertical separation of powers. It is a view that wants to empower the federal courts to oversee the states, and thus a view that iimplicitly views the feds as being “better” and federal judges as being of “higher quality” and more trustworthy than state courts.

Of course, this case belies that notion, since the state courts were here better than the federal courts. The result here shows that there are structures and institutions that help to limit state power other than the federal courts–so even if the Supreme court rules that states “may” constitutionally take private property for “private” use, it is still not the case that “property can be stolen, or condemned, at any moment.” After all, a state court might stop it. And if they don’t, maybe the legislature will. And if they don’t, maybe the people will vote them out. And if they don’t, maybe certain productive people will tend not to move there, or emigrate, thus impoverishing that state and putting more pressure on it to adopt better policies. And so on.

Comments (7)

  • Manuel Lora
  • Down with the state, confiscations and centralists!
  • Published: July 27, 2006 1:59 PM

  • Vince Daliessio
  • I’ll cop to being one of the people who believed Kelo would spell the end of property rights, but I will admit that the decision has actually energized voters and politicians in the several states out of their hypnotic-trance-like following of the central state and are moving (slowly) to prop up property rights.

    I have no doubt as to the reason politicians are moving on this – they know on which side their bread is buttered. Property taxes are a growth industry that is threatened by Federal alienation of property rights. Of course, states are still taking properties on behalf of private business…

  • Published: July 27, 2006 3:37 PM

  • Stephan Kinsella
  • Vince, help me out with something. I can see how reasonable libertarians could disagree whether Kelo was good or not–I can appreciate the argument that it’s useful to have the central state vetoing bad state laws. I can even appreciate–barely–the argument that this is required by the Constitution.

    But how can anyone think that the ruling–even if wrong–“spell[s] the end of property rights”?

    First, the states could already take property for public use; all the rule did was say that some takings, even if the recipient is a private developer, count. So, at most, the number and type of takings is going to be increased–trivially? probably not; but radically? probably not.

    Second, you have to envision our rights as being protected by a bunch of layers, like the heart of an onion. We are only talking about, at most, removing one of those layers–and not really even that–more like making one of the layers thinner. The other layers remain: congressional action; lobbying state officials who have the discretion when to take property; state court action; state legislative action; and so on. When we have a multi-layered approach to protecting rights, and to limiting state actors that might endanger rights, why would people assume merely weaking one of those restraints spells all-out doom? It just makes no sense to me.

  • Published: July 27, 2006 4:07 PM

  • Vince Daliessio
  • Stephan,

    Maybe I didn’t actually “believe” Kelo spelt the end of property rights, though we at libertyguys certainly acted like it did at the time. I’m willing to concede it was a hasty reading, though with all of the other freedom-reducing stuff the government was trying at the time, it seemed more apocalyptic than it does now.

    But the outrage had a positive effect at the state, and even at the local level. A community near me in South Jersey threw out their pro-eminent-domain town council in part due to (misplaced?) outrage over Kelo (and an excellently-timed letter to the editor by a loyal Mises reader who shall remain nameless).

    So the outrage, while something of an overreaction, has had a somewhat salutary effect on the politicians at the state and local level, at least here in NJ.

  • Published: July 27, 2006 4:54 PM

  • Stephan Kinsella
  • Vince: Sure, okay. But just b/c misplaced outrage has a good effect does not mean the outrage makes sense, and it certainly does not mean that the analysis underlying the apoplexy about Kelo was sound.
  • Published: July 27, 2006 4:58 PM

  • Frank N Stein
  • Hey, at least people had an outage over a threat to private property rights, rather than the standard outrage from the left over some people not receiving enough of other people’s money. If Kelo caused a couple more people to actually take an interest in the Constitution and made them more critical of government encroachment over their liberty, then I say the outrage was a good thing.
  • Published: July 27, 2006 11:03 PM

  • Stephan Kinsella
  • Frank n furter: So next time you have an outrage, others would be right to ask if you are serious or just doing it for effect?
  • Published: July 27, 2006 11:32 PM

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