Rebirth of Reason


Machan's Musings - Kelo v. New London Versus the Free Society
by Tibor R. Machan

There are some (relatively few) champions of individual or private property rights who actually and oddly defend the recent U.S. Supreme Court ruling in Kelo v. New London City, Connecticut, which authorizes city governments to condemn private property and then give it to other private parties because the new owner will enhance economic development. (See attorney Stephan Kinsella’s post.) This purported libertarian justification seems to rest on the view that, while the federal government has no authority to take private property, local governments do because the Bill of Rights constrains only the feds, and no one else. So the admonition in the Fifth Amendment to take private property only for bona fide public use does not apply to New London City. Furthermore, the position holds, if government engages in taking, it is better to do it for a genuine private than a nonexistent public use.

This is an opinion that would be consistent for a genuine anarchist, who holds that no public uses exist at all, that is, that nothing may legitimately be used for citizens as citizens, such as courthouses, military bases or police stations. For bona fide anarchists these are all private projects. (The details of why this is so are a bit complicated and, in any case, misguided—libertarian "anarchists" do endorse certain bona fide public concerns, but refuse to call them such, just as they believe in government but refuse to call it by that word and invent, instead, neologisms such as "defense agency" or "justice service" or whatever. For more, see Tibor Machan, "Revisiting Anarchism v. Government.")

However, there is much to be objected to in all this. There are, in fact, some projects in any community that pertain to the maintenance of justice and certain properly limited institutions are required for that purpose. Since all citizens, qua citizens, adhere to certain very limited public objectives, takings for public use amount to following exactly what all the citizens want, namely, to make sure justice is upheld within the community over which governments have been instituted so as to secure our rights. For that strictly limited purpose, it is okay to obtain property from private parties since, in fact, they are on record consenting by their very citizenship to such specific, limited takings. It is akin to the reason citizens may be subpoenaed for trials—because they are on record, with their citizenship, supporting the objective of achieving the pursuit of justice. This point is rarely explored by libertarian anarchists—they insist on reducing all public realms to private ones, thus hoping to eliminate politics as a bona fide, legitimate concern in human community life.

However, limiting takings to bona fide public uses is in fact perfectly justified within a free society because it amounts to nothing more than the expression of what individual citizens all must have at least implicitly agreed to, namely, the task of upholding justice. It is, however, an abuse of this legal power to take private property for private use, something to which citizens have clearly not agreed qua citizens—quite the contrary. It is just so that private property and other rights are effectively protected or secured that governments—including what the libertarian anarchists call "defense agencies"—are instituted in free societies.

The libertarians who support Kelo v. New London do so, also, on what they regard to be sound constitutional grounds, claiming that the Fifth Amendment to the U.S. Constitution properly limits only the federal government and not city, county, or state governments, which may make laws entirely independently of any admonitions of the U.S. Constitution. Because of the belated incorporation measure that extends the scope of the U.S. Constitution to the entire country, they regard such application as urged by most defenders of private property rights in Kelo to be misguided—only those who love the Leviathan would then criticize Kelo; right-minded people would understand that Kelo is in fact sound from the viewpoint of a proper understanding of the scope of the U.S. Constitution.

Actually, although this may be proper legal theory in a highly esoteric sense, as far as the libertarian objective of instituting government for the purpose of securing our rights (per the Declaration of Independence) goes, it is misguided tedium. Since the Constitution has been applied, ever since incorporation, to cases with bearing on the rights to freedom of speech and religion, as well as the freedom to bear arms and to be free of coerced confessions (the latter also part of the Fifth Amendment) of all American citizens, it is now completely unrealistic to insist on the reversal or incorporation. The best that we can get is a possible reversal of the Court’s rulings in favor of governmental measures that depart from what government—federal, state, country, or municipal—is properly authorized to do in a free society, namely, to protect every citizen’s individual rights. In this respect, Kelo failed miserably, and so must be condemned, period, whatever the technical razzmatazz about the structural undesirability of incorporation may amount to.

The main motivation behind the contrary stance of some libertarians seems to be that they consider empowering small governmental units to be less hazardous than empowering the federal government (even if both should not be so empowered). It seems to be especially objectionable to such libertarians that a branch of the federal government would be empowered to rule on what constitutes securing our rights (especially at the local or municipal level), so when they fail to do this securing, or actually do the opposite, these libertarians play the "bite the bullet" gambit instead of pointing out that what the branch does is wrongheaded. For instance, in Kelo v. New London, these libertarians simply hold that whatever the Court says about anything other than the powers of the feds must be wrongheaded. Yet that is effectively beside the point today. Moreover, it would render some of the most potent legal measures in defense of individual rights—all those listed in the Bill of Rights—nearly irrelevant other than when the federal government usurps those rights. But these rights are actually routinely violated by all levels of American government and if the Courts can function as bulwarks against such violations, I say go for it. We need all the help we can get and no arcane technicality of what is by now pretty effectively obsolete constitutional law should stand in our way.

If one keeps in mind that libertarian "anarchists" are really not anarchists—since they do believe in law and its administration and they do accept some agency having jurisdiction in such matters—and if one then keeps in mind that takings for purposes of enhancing such administration is necessary given that compensation is provided, then it is clear that government has proper legal authority only to take private property for public—which is to say, strictly limited legal administrative—use. The incorporation issue is irrelevant here, and is of no concern to the basic principles of a free society. Kelo, then, did grave violence to individual or private property rights and one ought to work to have the Court reverse itself, not to lend it any kind of credibility.
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