Tuesday, October 18, 2005

Kelo, Federalism, and Libertarianism


Doug at Below the Beltway joins Scott Scheule of Catallarchy in arguing that Kelo v. City of New London was rightly decided in the 2004-5 term of the U.S. Supreme Court. The Supremes, as you undoubtedly recall, upheld the right of the City of New London, Connecticut, to condemn private property for redevelopment. The rationale, in brief: The city's redevelopment plan serves a public purpose under the "takings clause" of the Fifth Amendment because the plan enables the city to generate higher tax revenues.

Doug and Scott are buying into the argument that Kelo was rightly decided on federalism grounds; that is, the central government oughtn't intrude in matters best left to State and local governments. Scott says, in part, that
Kelo is undoubtedly a glorification of federalism. In a decision nothing short of miraculous, the liberal members of the Court deferred to a state’s judgment. Is that not precisely what a federalist should want? A professor once told me the true test of your belief in individual freedom is when you think people should be free to do even the things that you would prefer them not do.

I propose that, by the exact same token, the true test of your belief in states’ rights is when you think states should be free to do even the things that you would prefer them not do. The alternative is often to simply pick and choose which government, federal or state, you would like to defer to based on nothing more than your personal political preferences. It is not exactly an unpopular philosophy: indeed it is the policy of much of the Supreme Court today. Still, the blatant inconsistency seems unsatisfactory.

Assumedly many of us are federalists because we believe the federal government does things badly. Is there any reason why this principle, if true, should be the case in issues of, let us say, euthanasia or drug use, and not hold when it comes to issues of eminent domain?

There is a deep tension here.

And though, as Justice Thomas quite rightly perceived, “something has gone seriously awry” with the Court’s interpretation of much of the Constitution, I disagree there is something awry with the interpretation of this particular provision.

I expect this post to make me exceedingly [un?]popular in libertarian circles.
The post should make Scott exceedingly unpopular (temporarily, one hopes) because of its wrongheadedness. Being a libertarian and being a federalist are two entirely different things. A libertarian would oppose government land-grabbing regardless of which level of government is doing the grabbing. Scott simply has to decide whether he's a federalist or a libertarian.

Moreover, Kelo was not decided rightly, even when viewed through the lens of federalism. The key can be found in Doug's incorrect assertion that
[t]he 5th Amendment, as originally written, applied only to the Federal Government, not the states. It was only through several decades of tortured jurisprudence that we have come to accept the idea that the 14th Amendment "incorporated" most (but not all) of the provisions of the Bill of Rights and made them applicable to the states, thus giving Federal Courts jurisdiction to determine the Constitutionality of the actions of state and local governments in a way that they did not have under the Constitution as originally understood.
Now, whatever you may think about "incorporation," certain parts of the Bill of Rights were meant, from the beginning, to bear on certain kinds actions by any and all governments in the United States. The Fifth Amendment clearly belongs in that category, as do Amendments II, IV, VI, VII, VIII, and X.* It's important to remember that the U.S. Constitution wasn't meant (or written) as a "set of rules" applicable only to the central government but, rather, as a sorting out of the rights and powers of the newly created central government, the governments of the various States, and the people. The Bill of Rights must be understood as a clarification of that broader sorting out, and not simply as a set of restrictions on the central government.

Consider the Fifth Amendment, specifically:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
It was well understood in 1791 that the prosecution of almost all crimes was a matter for State action, which is why the Fifth Amendment specifically enumerates the kinds of cases that then came under the jurisdiction of the central government: "in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger." Thus, given its main focus on crime and punishment, the Fifth Amendment clearly applies to the States as well as to the central government (no "incorporation" is necessary, thank you). The position of the "takings clause" -- in a string of clauses that clearly apply to the States -- means that the Fifth Amendment, from the moment of its adoption, was meant to proscribe takings by States (and their subordinate jurisdictions), when such takings aren't for "public use" (which means public use).

Kelo was wrongly decided, period.

UPDATE: Doug, as I hoped he would, has posted a reply to this post. He responds, first, to my statement that one must decide whether one is a libertarian or a federalist:
[T]he choice is not so much between being a libertarian and being a federalist as it is between being a libertarian and being faithful to the original understanding of the Constitution. Judicial activism can exist not only on the left, but also on the right and there have been those who have argued for what is essentially a form of libertarian judicial activism which concerns itself more with the results of a judicial decision than with whether that decision is a correct interpretation of the Constitution. If you believe that judges should be faithful to the original understanding and intent of the Constitution, as I do, then that means being a federalist.

Federalism was at the heart of the Constitution when it was drafted. The Federal Government and its institutions, including the Supreme Court, were intended to be weak as compared to the states. This can be seen in the Constitution itself, which strictly defined the powers of Congress and the President but has very little to say about the powers of the states.
Fine, but that leaves libertarians to fight for liberty while federalists fight for States' rights, whether or not those rights are compatible with liberty.

In any event, the original Constitution does say some things about the powers of the States, not the least of which is the second clause of Article VI:
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.
Madison's view was that the federal Bill of Rights ought to be supreme. I quote from Irving Brant's The Bill of Rights: Its Origin and Meaning (1965 edition, pp. 49-50):
The next contention Madison took up [in 1789, as chairman of the House committee to consider and report amendments to the Constitution] was that a federal Bill of Rights was not needed because state declarations of rights were still in force. The solemn acts of the people in putting such declarations in their state constitutions, it had been said, could not be annihilated by their later establishment of a general government whose express purpose was "securing to themselves and posterity the liberties they had gained by an arduous conflict." (Here again the objectives of the American Revolution were defined in terms of the guarantees contained in bills of rights.)

Madison found this objection inconclusive. In the first place it was too uncertain ground on which to leave a matter considered so important by the people. "Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty."

Here Madison refuted in advance an argument later utilized to undermine the basic freedoms -- the contention that the defects in state bills of rights should be used to measure the purpose, force and extent of the federal guarantees. In reality, those defects were used as an argument for adoption of a strong federal bill of rights, instead of being evidence of weakness in the one adopted.

This brought Madison to the question of enforcement. It had been said that a federal provision would be useless "because it was not found effectual in the constitution of the particular States." True it was that there were few states in which the most valuable rights had not been violated. But it did not follow that they had no salutary effect against the abuse of power. He saw two great protective agencies that would support the federal guarantees of liberty. . . .

The other protection was to come from the states:

"[T]here is the great possiblilty that such a declaration in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a federal government admit the State Legislatures to be sure guardians of the people's liberties."

. . . The Constitution, [Madison] told the House, already contained wise and proper restrictions on the states in the words "No State shall pass any bill of attainder, ex post facto law, etc." There was more danger, he thought, of those powers being abused by state governments than by that of the United States.
Madison wanted the States to be bound by the Bill of Rights, morally as well as legally. Congress did restrict the applicability of the First Amendment to acts of Congress, but mainly because it saw First Amendment rights as being adequately protected by State constitutions (even though they weren't always). It is telling that Congress did not insert similarly restrictive language into Amendments II through VIII, that is, the other original amendments that prescribe specific rights. The omission speaks volumes about original intent, as do Madison's views.

If Chief Justice John Marshall, in Barron v. Mayor & City Council of Baltimore (1833), had chosen to invoke Madison's original intent, we would not be having this argument. The "takings clause" would have been understood to apply to the States and their subordinate jurisdictions. We would have been spared piecemeal "incorporation" of the Bill of Rights, which has yet to apply the "takings clause" to the States, as it should have in 1833.

I conclude that Barron was wrongly decided by a Chief Justice who went against the accepted view of the Bill of Rights. I again quote Brant, writing about the adoption of the Fourteenth Amendment (p. 322):
. . . Bingham . . . had the erroneous impression that the first eight amendments were intended to restrict both the federal and state governments. That belief was widely held among legislators, laity and lawyers during the first half century after the amendments were adopted, and it persisted even after Marshall's Supreme Court decided in Barron v. Baltimore (1833) that they did not apply to the states.
Why does Brant assert that there was from 1791 until 1833 (and even later) a prevailing "erroneous" impression about the scope of the first eight amendments? Here, Brant goes in a circle. The prevailing impression was erroneous because of Barron, which was decided 42 years after the adoption of the Bill of Rights. But Barron is where Brant rests his case. In particular, Brant says (p. 326)
that in a Constitution setting up a government of limited powers, any "limitations of power, if expressed in general terms," must apply to the government created by that instrument. [The quotation is from Marshall's opinion in Barron.]
But the first eight amendments are decidely not general. Nor does the original Constitution simply limit the power of the central government, it also limits the powers of the States both generally (in Article VI) and specifically (in Articles I and IV).

Brant hangs his hat on Barron, which flies in the face of Madison's intent and 42 years of acceptance of that intent by "legislators, laity and lawyers."

In sum, Kelo was wrongly decided because Barron was wrongly decided.
* If you still think that the Bill of Rights restrains only the central government, and not the States, read Amendments II, IV, V, VI, VII, VIII, and X together:
Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.