Blogs > Liberty and Power > First Raich, now This (Kelo)

Jun 24, 2005 6:07 pm


First Raich, now This (Kelo)



More bad news: there's no such thing as private property, according to the Supremes.

UPDATE: This NYT editorial is nonsense. After noting the objections made O'Connor's dissent, the NYT tells her to relax, there's nothing to worry about. Oh great, the Times is sure no abuses will result from this, that makes me feel so much better. Then to add insult to injury, the editorial concludes that hey, it's not really a big deal anyway, because the"few small property owners" will be"fully compensated." Nice of the Times to make explicit its view that these people are small, but as to their being fully compensated, um, no. They didn't want to sell in the first place, so does the compensation package include their anguish and inconvenience, as well as a true market value for their homes (as opposed to 5-year old government appraisals)? Didn't think so. Not to be rude, but this seems analogous to raping someone, calculating the going rate for a prostitute, giving the victim that amount of money, and then claiming she was justly compensated. Sorry for going blue, but the more I think about this the madder I get, and it doesn't help that the left praises this ruling because, as the NYT puts it,"it's a setback to the 'property rights' movement." Note the scare quotes! Commies.


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Stephan (K-dog) Kinsella - 7/14/2005

Palmer first says:

It is worth remembering that taking of property is explicitly mentioned in the Constitution, which stipulates that, if taken, it shall be for public use, with due process of law, and with just compensation: "nor shall private property be taken for public use, without just compensation." The Fifth Amendment does not stipulate, unlike the First, that "Congress shall make no law...," but that private property shall not be taken, except under the conditions stipulated. States may have the constitutional authority to ban marijuana (they certainly do have such authority with regard to alcohol), but they do not have the authority to steal Anthony's house to give it to Tom because they like Tom more or because Tom is richer and could pay more taxes.


Here Palmer implies that the Fifth Amendment on its own applies to the States. That is, that it applied to the States in 1791. That it did not need the 14th Amendment to apply it to the States. This contradicts what almost any educated person of the time, or even now, understood about the Constitution and the Bill of Rights. And it contradicts what he says later, when he implies that he realizes the 14th amendment is why the 5th applies to the States.

And he also implies States don't have "the authority" to take property in the way he describes. I can only take this to mean he believes States derive their authority from the Constitution. If so, where, pray tell, are their powers enumerated?

As a libertarian, I don't think States have the right, or "authority" if you will, to violate rights--which would include any taking of private property, for any purpose. But when Palmer says the State does not have the "authority," what he means by this is that the feds have "the authority" to police this and to stop it. But of course, since the feds have only enumerated powers, they need a power to do this. Moreover, the courts need the power, not just the Congress, by the language of the 14th. And even if the feds had the jurisdiction to do this, it does not mean they are the sole or final authority for interpreting the Constitution. Just as the 3 branches of the federal government have equal and independent capacity and obligations to abide by and interpret the Constitution, so the States do as well (see Jefferson and Madison, the Kentucky and Virgina Resolves).

In any event, the point is P-dog is equivocating about what "authority" means. First, he uses it in a moral or libertarian way to act shocked that I think states have "the authority" to, say, enslave or rob people. But this usage means some moral conception of "authority," as in a "right". Of course States don't have a "right" to violate "rights." But then, he shifts, having used "authority" in the "rightful" sense, to assuming that "authority" means "authorized by the Constitution"--which implies that the Constitution is the source of state powers and also that the feds are empowered to judge the states, and are the sole and final decision maker.

This is a sneaky, flawed argument. In short, what Palmer is trying to do is argue that because a state action is a violation of rights, this automatically means the feds must have a power to stop it--otherwise the states would be "authorized"--have a "right"--to do it. But this latter usage is akin to what liberals do when they say, "but how can you 'let' people starve?" By Palmer's terminology, if the UN World Court fails to overturn the US Supreme Court's Kelo case, it is "authorizing"--horrors!--the New London eminent domain practice.

Palmer states that lynchings by states are unjust. Sure. "Does it have to be genocide for it to be unjust? Surely that can't be right." Of course. But this implies nothing about the division of power between the states and the feds. "Rights inhere primarily in individuals, not in groups," he writes. Of course, T-dog. We all know and agree with this. But as your boy Gene Healy noted in this exchange with other libertarian centralists:

When a libertarian decentralist calls a federal action a violation of “states’ rights,” he means that the federal government has transgressed its enumerated powers and is claiming jurisdiction over an area that the Constitution reserves to the states. In a similar fashion, we can speak of NATO’s lawless assertion of jurisdiction over a civil war in Yugoslavia as a violation of Yugoslav “sovereignty,” without thereby conceding to Slobodan Milosevic’s government a god-given natural right to kill Kosovar Albanians.


The mistake Palmer makes is in believing--or adopting the pose of believing, after all, how could anyone else ever believe anything else--that we all agree that if you can show some state action to be unjust that this necessarily implies some other state must be authorized by its own constitution to intercede. We decentralist libertarians are quite aware that not everyone agrees with us. We are quite aware that we are a minority. We are quite aware that most libertarians are either too ignorant or too unprincipled to oppose the current system, or that they are resigned to working within it and see no point of pointing out any more that the Emperor has no clothes. But it is extremely frustrating when libertarian centralists not only differ with us, but insist on calling anyone who is in favor of limited federal government "neo-Confederates" or apologists for slavery. Or when they adopt the faux-innocent pose, pretending like it never occurs to them that the states and feds can be seen as co-equal sovereigns in a federal compact, each with delimited roles. What they are doing is what modern socialists do to libertarians: they pretend to be shocked when anyone suggests something like abolishing social security or public school, so as to snidely and subtly try to paint their opponent as having such outlandish notions that are beyond the pale of reasonable discussion. Now their little tactics here won't work, but it is a sad sign to see such disingenuity and related desperate tactics resorted to again and again.

As for pointing out that the emperor has no clothes, I in particular mean doing what I did in my Kelo article: pointing out that the Supreme Court has no constitutional authority to review state eminent domain laws.

Now I have said many times that I can sympathize with, even admire, maybe even agree with, the libertarian who says, "To hell with the Constitution--we are at such a state of Hobbesian lawlessness that I don't care about it, I'd rather snatch liberty in small bits and pieces where I can." This is a perfectly respectable position. I even share it to some degree. Where I differ with most of those who have this view is that I would be honest about this view. I would not feel compelled to attack those pointing out what the Constitution says, because I am favoring an action regardless of what the Constitution says. I would not feel compelled to pretend that my view just so happens to be supported--what a coincidence--by the Constitution. And I would not so cavalierly disregard the significant costs of such a policy: such as, the dangers of the central state adopting the principle that it is simply not bound by the Constitution's limitations.

Apparently unlike most libertarians, I happen to actually prefer a limited federal government to one that is virtually unlimited or limited only by malleable, "evolving" standards that it has the discretion to interpret. I am actually coming to the view that many libertarians are just idiots or ignorant, and for some reason are not bothered by the idea of unlimited government. I used to think favoring unlimited government was practically a requirement of being a libertarian. Apparently it is replaced nowadays with Randian myths about our near-perfect American Utopia and naive platitudes, almost a Marxian belief that we can transform man's nature to finally, finally, tweak the system enough to once and for all get it right. Bah. Ridiculous.

P-dog continues:

In other words, Mr. Kinsella would indeed object, on constitutional grounds, to the federal courts intervening to stop a state from executing people on the grounds of their race or religion.


Palmer cannot separate the issues involved here (Roderick Long does a good job doing this here). One question is: would this be constitutional? Now I am the first to admit--as an anarchist--that the Constitution is not perfectly libertarian, and I am happy to have it disregarded in some cases. But we happen to have a Constitution that, IF it were followed, would limit federal violations of rights, which have been imense. And the feds seem to give lip service to their obligation to abide by the Constitution. Therefore it seems to me that we libertarians ought, ceteris paribus, to favor the rule "federal officials must not violate the limits placed on them, or go beyond the powers granted to them, in the Constitution." Because the alternative is the principle that the feds are not really bound by the Constitution. As I noted, I myself, as a libertarian, prefer limited federal government to an unlimited or relatively less limited one. Why any libertarian would disagree with this, I have not the foggiest.

But back to T-dog's question: I have not looked into this matter closely, but I imagine a state executing people on the basis of their race might fall under the equal protection clause. So if Congress had exercised the power granted to it in the 14th to address this issue, I suppose the federal courts could act based on it. Of course, the state could secede if it chose, but so long as it stayed in the union, it would be subject to those rules. And of course, the state is also competent to construe the Constitution, so it would be possible, in theory, for there to be deadlock or constitutional crisis--just as is possible now if the President strongly disagrees with the Court, for example (remember Nixon v. the Court...). The risk of such deadlock is considered to be worth the gain of the checks and balances of horizontal separation of powers, and of course this would be true of vertical separation of powers as well.

So, in sum, probably the feds would be able to get constitutional jurisdiction over a case of state discrimination, due to the equal protection clause of the 14th--subject to the caveats above, and ignoring that the 14th was illegally ratified; we must take it as a de facto standard now, and it is not really in principle fundamentally more unjust than the Constitution itself, which is also "illegal" according to various standards one might apply.

But so what? P-dog asked the wrong question. For I would grant that the feds have no power to stop states from doing other things--like establishing, oh, say, Congregationalism as the official state religion. Nothing in the Constitution prohibits it. Now recognizing this does not automatically mean I would "opppose" the feds from intervening--it just means I don't pretend it would be Constitutional. As it so happens, I would oppose this, because I want to keep the feds limited. And also, because I see no reason to assume ahead of time that the feds will make "better" decisions, so there is no reason to vest the "final" authority in the US Supreme Court rather than the state's supreme court. In fact, because the central state is more distant, more powerful and larger, and has less competition, we can expect its decisions to systematically tend to be worse than those of more local, smaller, less powerful states.

Why not broaden Palmer's question? What if Massachussetts outlaws interracial marriage? And what if the Mass court, and the Supreme Court, all fail to overturn this? I will assume that Palmer would not say that we have to vest power NOW in the UN World Court to overturn municipal laws that it believes violate "human rights" (such as those in the UN Declaration of Rights). If he does, he is in favor of world government, which I think is pretty clearly unlibertarian (no offense, certain Objectivists--oh wait, Objectists spurn the "word" "libertarian" in the first place, afraid of it ya see--so I guess they would not be offended by my implication they are unlibertarian). So I'll assume he is not now in favor of the UN having a world court that sits atop the US court. So if this is the case, I could just say to him,

In other words, Mr. Palmer would indeed object to the UN World court intervening to stop a state from banning interracial marriage.


Or let's take an actual example today:
In other words, Mr. Palmer would indeed object to the UN World Court having the jurisdiction granted to it ahead of time to permit it to intervene to stop a state from having public schools and taxing over 50% of its citizens' wealth.


Are we supposed to open our mouths agape and point with a shriek at Palmer as in Invasion of the Body Snatchers' final scene, as if he is a ghoul, just because he would presumably not be in favor of a one-world state that "could have" forced America to lower its taxes? What is this emotion-laden question really supposed to show? That someone is "bad" or "wrong" if they--gasp--don't have the ability to stop all tragedy in the world? Is it evil--is it bigoted or anti-semitic or slavery-apologizing--to recognize there are immense costs to liberty and rights to empowering these huge beasts willy-nilly just in the longshot hope that this newly empowered and strengthened monster will use this power to beat down other, smaller monsters that also threaten us?

In [K-dog's] view, federalism implies a federal power to tax, but not a federal power to protect rights, despite the language of the 14th Amendment and other elements of the Constitution.


This is just confused. Palmer has elsewhere reacted with scorn and derision to my suggestion that states ought to be able to nullify unjust federal laws, on their territory. I could say to him,
In Palmer's view, our constitutional system implies states have the power to tax, but not a power to protect rights (from federal invasion), despite the fact that the States were seen in our federal order as the primary agents of protecing citizens' rights from violation.


So let me explicit. The states have broad police or legislative power, so they can outlaw things like murder, robbery, trespass, and enforce contracts, marriages, property rights, etc. This was seen as their role. That is one reason the feds do not have broad legislative power, and only enumerated power: they don't need to be able to outlaw, say, murder--the states are presumed to take care of this. The feds have functions and powers related to national issues--dealing with other countries, settling disputes between states, establishing a large free trade zone internally, national defense. So the states have broad powers, to protect citizens' rights. The states are limited as well, by their own constitutions primarily, and to some degree by the federal Constitution, to try to keep them from abusing these powers. So the states' role in our system IS to protect our rights.

The feds are also granted enumerated powers, also to protect our rights--from invasion by a foreign country, for example. They are also limited severely, to keep them from trampling citizens' rights.

What is to keep the feds from violating citizens' rights? Several things. Horizonal checks and balances. The power of judicial review--Jefferson's concurrent review, really, so that any of the 3 branches can boycott an unconstituional federal action. Also, the Bill of Rights. Also, the right of a state to secede if necessary. Etc. But there is no "overlord" state, like the UN, that can force the feds to comply with the Constitution.

Now, what is to keep the States from violating citizens' rights? Well, they, too, like the feds, have constitutions that limit their (broad) powers. Having a federal union where state citizens can easily emigrate to another state--competition--also helps keep a state in check. Ther are also some limits on states in the federal constitution, but not as many as Palmer thinks. And even if there were NO limits on states in the federal constitution, this does not mean the states are "unlimited"--any more than the feds are "unlimited" solely because the UN has no jurisdiction over them or because the States don't have supervisory authority over the feds.

If you realize that the feds and states are both sovereign states, each having powers, and limits, just like all other states in the world, you will realize that there is no apriori reason to assume that there need to be ANY limits on the states in the federal Constitution. The problem of states is that whatever the "top" state is in the pyramid, it is going to be unlimited (see on this de Jasay's great book, Against Poltics, summarized in my review). But this is just the problem of state power in general; and it is why some of us are anarchists. Nonetheless, I am sure Palmer would say that, to the extent his vision of the American system is that it is a decent system, thre are many states in the world that are decent in some sense--the "civilized" states of Europe, for example, some in Asia, Canada, Australia, etc. But none of these states is supervised by another state. None of them has "limits" placed upon them--in the sense of being supervised by an overlord Court as the American States are by the US Supreme Court; and for those that do, e.g. EU countries and the EU human rights courts--then that court iself or the EU is not itself limited by a higher power. There is some state "top" level that is always not limited by a higher, supervisory state. Apparently Palmer does not recoil with horror at this notion. Yet, and yet, the idea of an American state that is not limited by the federal government gives him conniptions. He just can't even conceive of them being limited only by their own constitution and political processes, like every other state in the world--indeed, like the very federal government itself.

Personally, I cannot see how libertarians can advocate any state; for states are all, essentially, unlimited. This is the problem of states. But for libertarians who are minarchists and thus favor some state, or who tolerate them, it is bizarre to think that of all the states in the world, American states MUST have supervision by some overlord state--but that it's okay for all other states to lack this supervision. This is indeed a puzzling view.

I could actually understand a libertarian who realized the danger of unlimited states--who watches the watchers--but who nonetheless thought states were necessary (or at least inevitable) wanting the states to try to limit each other. And lo and behold, he might come up with some notion of separation of powers, checks and balances. In a sense, in a tripartite system, the executive, judicial, and legislative branches are like separate governments, each with some veto and other powers over the other. So they help "review" each other. Why not try it, hell. Let states --or sub-components of a state--check each other. So who wathches the watcher? No one can watch an all-powerful watcher. So why not use 3 watchers instead, each with partial powers over us, and over each other. That way, none of them is unlimited, and they all sort of supervise each other. Of course this is not guaranteed to work, but better than nothing. Imagine MAD, the policy of the US-USSR nuclear standoff--mutually assured destruction: each in essence pointed a weapon at the other that would fire the other's weapon. So these checks and balances restrained each state from attacking the other.

Likewise, in a federal union such as ours, with large, pre-existing constituent states, why would any libertarian want only to limit the lower states, by giving some limiting power to the central state? That creates an overlord over the lower states and makes the overlord central state even more powerful. This is like Russia having nukes pointed at America, but America having none. What about the central state itself? What is to limit it? Its Constitution? But the presumption of Palmer in insisting the feds must limit the states, is that a mere constitution itself is not enough to "really" limit a state. If it were, the state's constitution would suffice. If it does not suffice, why assume the federal one will? So wouldn't it make sense for the states to have some kind of political power or threat against the feds? How about the right to leave? How about the right to nullify federal law in the state's territory? How about the right to retain certain spheres of authority, while the feds have others as strictly enumerarated? Etc. All these things make perfect sense. We limit the States, and the feds, with their own constitutions; then, because these paper limits are doomed to fail (or at least be imperfect), woulnd't it make sense to have each one have some (political) power over the other? I.e., vertical separation of powers. So the feds can insist on, say, internal free trade and stop a state from taxing interstate trade. The states can leave the union if they wnat, and so on.

So, what is a mystery is why Palmer and his ilk react in bug-eyed fashion to any sincere libertarian advocating such views, as if to want reciprocal limits on power is tantamount to yearning for the antebellum days of slavery. Or why the very idea of the states not being subject to review by the feds drives them batty, when every other damned state in the world is NOT subject to some overlord state's review. I don't get it. Does Palmer think the US States are some uniquely evil regime in the sweep of human history that alone need some parental supervision? and no, T-boy, I am not saying the South's slavery or racial discrimination are no big deal or okay, but heck, seems to me most states in history are as bad as, if not worse than, the US states. If it's okay for allllll of these to run around on the loose with no overlord collar, why not for the relatively decent US states?


Stephan (K-dog) Kinsella - 7/14/2005

No Treason is not serious. He thinks he is making the opposite point that he is, by showing how absurd the states' rights view is. Actually, however, in my view, as I argued in detail here, is that the Supreme Court does not and should not have the authority to review such state laws. The right decision was reached (for the wrong reasons).

All 9 Justices are wrong in maintaining that the 14th Amendment incorporates the 5th Amendment. But *given* this assumption, the conservatives' construction of the 5th Amendment surely makes more sense, as usual.

Here's an easy way to see how absurd the incorporation of the 5th Amendment is. The 5th Amendment, which no one doubts originally restricted ONLY the feds (until 1897) -- says "nor shall any person ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Clearly, "due process" rights are merely procedural, and are separate from the right to receive just compensation for expropriated property, or the right to have property taken only for public use. In other words, saying that someone has a right not to "be deprived of life, liberty, or property, without due process of law" clearly DOES NOT include the "takings"-related rights. Otherwise, it would not have to be listed alongside the due process rights.

Now the 14th Amendment repeats the "due process" language of the 5th amendment and does apply it to the states. It says: "nor shall any State deprive any person of life, liberty, or property, without due process of law...." But it does NOT repeat the language saying takings have to be for a public purpose and compensated. So clearly the 14th Amendment requires states to abide by due process, but does not require them to pay compensation for a taking or to have only takings that are for a public purpose.

Yet this is waht the Supreme Court held, under its ridiculous notion of "substantive due process," by which it basically said that the due process clause of the 14th amendment "includes" the fundamental rights in the Bill of Rights--including the "takings" provisions of the fifth amendment! It's absolutely ridiculous.

In particular, in the 1897 case CHICAGO, B. & Q. R. CO. v. CITY OF CHICAGO, the Court concluded,

In our opinion, a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the state or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the fourteenth amendment of the constitution of the United States, and the affirmance of such judgment by the highest court of the state is a denial by that state of a right secured to the owner by that instrument.


Now, libertarian advocates of a vigorous federal review of state law, like Roger Pilon et al., admit that the due process reasoning is ridiculous. They maintain that the Court erred early on, when in the Slaughterhouse cases the Supremes refused to overturn some state protectionism laws. They argue that the Supremes should used the privileges or immunities clause of the 14th instead; but since they eviscerated it early on, they had to stretch the due process clause later on to do what the P-I clause was meant to do. As I have argued elsewhere, this is also implausible and unpersuasive.

Now an interesting sidenote--I am curious how long it will take someone to chime in and accuse me of racism or bigotry or being "insensitive" for having this particular constitutional view.


Stephan (K-dog) Kinsella - 7/14/2005

One more comment. The state already has the power to take private property--so long as (a) they pay compensation, and (b) it's for a public use. At worst, this decision means that the feds have loosened the definition of what is a public use. So let's calm down and consider how bad this really is.

First, states still have their own restrictions in their own constitutions. So, just because the feds now allow some (compensated) takings that they didn't before, some states may still have tighter restrictions. Second, even the feds would still strike down more blatant or obvious cases of takings not for a public use. Third, they still require compensation, in any event.

The distinction between private and public use is nonrigorous anyway (see, e.g., Hoppe, Fallacies of the Public Goods Theory and the Production of Security), so the public/non-public distinction was bound not to be of very much help. What is key is that compensation at least be paid. (Although since value is subjective, there really is no way to fully compensate the owner.)

For more elaboration on this, including my analysis of a similar aspect of international law, see my post On Takings and Public Use.


Stephan (K-dog) Kinsella - 7/14/2005

Kennedy, there are two questions here. First, what is the right way to construe the Constitution? The answer is that it was set up so that the feds only have limited powers. The result is they don't have the power to strike down the bad state law in question. This analysis is the one that should be reached, whether one is in favor of this structure or not.

Second, is this a good structural limitation on the central state's power, from the libertarian's point of view? I would argue that it is. For the court to have power to strike down state laws, you have to shift power in their direction. Ab initio, there is no reason to assume that the feds will make more libertarian decisions than the states. Therefore, there is little ex ante *systematic* advantage to centralizing this power rather than leaving it dispersed. And there are disadvantages, clearly, to this centralizing tendency. So there are drawbacks, and no benefits. It's clear, then, that it's not prudent to do it.

Another point: suppose the current rules established by our federalist Constitutional order are "bad". Nevertheless, if you urge the Court to disregard these rules anyway, you are endorsing the rule that the Supreme Court--one-third of the central state and a gatekeeper for the others--ought not, as a matter of principle, respect the *limits* placed on it in the very document it relies on to authorize its right to exist. In other words, you are saying the central state ought to essentially be *unlimited*, just so that it can on occasion have power to tell states not to do bad things. This reasoning is akin to those Wayne's World conservative frat boys who whoop and cheer when US military might kicks' Iraqi ass, yeah! Or to the notion that US has to keep the rest ofthe world in line--hey, like SpiderMan, we have the power, and with great power comes great responsibility, like wow, man.


Stephan (K-dog) Kinsella - 7/14/2005

Aeon: I am disappointed. You did not call me an anti-semite or racist. Damn your hide. Palmer will be so upset.

I had written, "what is the right way to construe the Constitution? The answer is that it was set up so that the feds only have limited powers. The result is they don't have the power to strike down the bad state law in question."

You said,

I disagree. Why should we care about limiting the power of the federal govt?


Here is where you and other libertarians lose me. Your comment here immediately betrays a failure to distinguish between the legal/constitutional question, and the libertarian or policy view. I am saying that the Constitution was designed and meant to operate in a certain way. This is so whether one likes it or not. For you to ask "why should we care about limiting the power of the federal govt?" is a question getting at the wisdom of this Constitutional design. But let's say you can establish that the feds should not be limited in this way. So what? How does that show the Constitution follows your wishes? The Constitution is not perfectly libertarian. For examplel, I believe taxes are theft. Yet the Constitution clearly allows this theft. If I construed it like most of the libertarians who seem unable to distinguish is from ought (in this context), I might argue, "The Constitution does not permit taxes because taxes are immoral!"

Two possible reasons: 1, such limits protect state's rights, and 2, such limits protect individual rights. Since I reject 1 as a legitimate end,


This is an unfair characterization. "State's rights" is just shorthand for the notion that the states are sovereigns from the federal point of view, and that the feds have limited power. We set up a structure to divide power horizontally--checks and balances, a bicameral legislature, some supermajority requirements, advice and cosnent of senate on some things, a tripartite system of independent legislature, execuctive, and judicial branches. All these things are designed in part to keep government responsive and in check. No? We have other structures--freedom of press and speech; religious freedom, etc, which also serve as practical institutional limits on what the state can get away with. Even the electoral college. etc.

Why then is it so hard to conceive of vertical separation of powers? Having some powers at the central/federal level, others at the lower, relatively decentralized, state level? Even the right of exit--the right to secede for states, or to emigrate for individuals... all these things work together. I am continually amazed at the ignorance or naivety of libertarians who simply cannot understand the purpose of these structures.

then the only reason I would have to care about limits on federal power is 2. But if the _point_ is protection of individual rights, then the limits of fed power can't be construed in such a way as to _hinder_ the protection of individual rights. We argued about this on the LibProfs email list 9 or 10 years ago. I see neither of us has changed out position on this matter! :-)


I think this is just daft. It's like reasoning in a can. You could use this type of reasoning to justify giving the fricking UN a veto over municipal law of its member states. Do you realize how the UN could use this threat of this power to force states to, say, join up in a world tax or welfare scheme? Just look at how the feds use their power to withhold highway funds to arm-twist the states. etc.


Stephan (K-dog) Kinsella - 7/14/2005

Chris, I am not quite sure what is the point of your rambling post. Let me address a few things.

Stephan...your post on the international law was enlightening...even if I disagreed with a lot of it. Well...i can't say disagreed with the conclusions...but rather with the solutions offered. Being an international human rights lawyer, I can understand a lot of what you are saying and referring to, but still think that you deal with the problem at the periphery instead of going to the core of the issues explained...thus creating as many problems as you solve...and violating as many rights as your solution solves.


WTF?

So the key question remains: who do we want deciding these issues?


There is no "key" question. The key question depends on what your focus or interest is.

For the libertarian, he wants a system that minimizes rights violations (aggression). My view is that a consistent libertarian therefore has to oppose the state's existence, since it is institutionlized aggression. And if the state does exist, he supports structures designed to limit that state's abuses. This is all common sense.

One useful structure is to have separation of powers, both horizontal and vertical; and enumerated and limited powers for the central state. This is also all common sense. And it is obvious that one result of such a system would be that in some cases one branch of government will be powerless to stop other branches from doing bad things. Big surprise, but the solution to this "problem" is not to erase all limits.

On the basis of rights, particularly property and the public good, democracy goes right out the window because of the individualism and ideological bias that ensures that rights will be violated somewhere by the "majority" voting ideologically. The libertarian theory fails (as it always does) for several reasons, most prominently the failure to take into consideration historical inequalities and that the rights framework is not based primarily on liberty and property, but rather on equality, justice, and dignity. Liberty and property simply return us to Hobbes "state of nature"...no right is absolute, and simply making the argument that rights "cannot be used to violate the rights of others" is circular and returns us to the problem of who decides such issues. Communism (or Marxism, etc) doesnt work because it is basically capitalism with one major corporation (or power center)...or several depending upon how one views the various competing state apparatus'. It seems to me that the only approach is to take a rights approach, but then supply a judicial outlet to be able to oversee such decisions should they infringe on the basic rights of individuals in the context of the community. Democratic theorists can still have their power based rule of man, but if the decision on takings infringes upon the individual rights of others within a social context, then the judiciary can reject the taking. This can be done on both a state and federal basis so as not to mess up your precious artifical hierarchy. The only catch is that it would have to be a highly educated, impartial, non-ideological judiciary...something that is impossible in the US since our system practically guarantees that we will have ideological judges and a failure of a judicial system (which we do). One would be much better off looking to international law and judiciaries...or the one here in South Africa.


Sorry, could you repeat the question?

By the way...the COnstitution is not a sacred holy document...you would be much better off looking to the international human rights documents and jurisprudence...


The Constitution is not sacred, but we ought to be honest in interpreting it. Where it is not libertarian, we should recognize this. The Constitution has only instrumental value, as I have written here: Taking the Ninth Amendment Seriously: A Review of Calvin R. Massey's Silent Rights: The Ninth Amendment and the Constitution's Unenumerated Rights [1995], 24 Hastings Const. L. Q. 757 (1997).

As for the international human rights documents, you are wrong: they are thoroughly socialist. The Universal Declaration of Human Rights [sic] (2) is a veritable socialistic manifesto:
Article 22.
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23.
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

(2) Everyone, without any discrimination, has the right to equal pay for equal work.

(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

(4) Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24.
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25.
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26.
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

(3) Parents have a prior right to choose the kind of education that shall be given to their children.


The International Covenants on Human Rights [sic] include the International Covenant on Economic, Social and Cultural Rights, which provides for similar welfare rights.

These treaties are socialistic abominations. They recite a whole host of positive welfare rights; but they also recite some negative rights (even a stopped clock is right twice a day).

So I re-ask the question...who makes the decisions and why


Are you asking a normative, or factual, question? I really don't understand this apparently fuzzy-muzzy way of talking.


Stephan (K-dog) Kinsella - 7/14/2005

Kennedy, it's impossible to have a dialogue with your gadfly, disingenuous, pettifogging ways.


Stephan (K-dog) Kinsella - 7/14/2005

Sweet you may be, but also disingenuous and sneaky. Don't try to put words in my mouth like you did with your snide and dishonest statement about "rights".


Stephan (K-dog) Kinsella - 7/14/2005

Kennedy, what the hell do you believe? Are you nothing more than a gadfly, or am I misunderstanding you? Here you appear to be critiquing those who say the court's judgment was right. Yet on Palmer blog you say,

"The decision is dead right on Constitutional grounds and and the words "public use" have always been a nullity in this context. What the state takes is by definition for public use.

Kelo was always fully implicit in the Constitution and it's no worse in principle than taking land for a public road or taxing a can of soda pop."

Is this your actual view? Or what?


Stephan (K-dog) Kinsella - 7/14/2005

Palmer: "What's remarkable is that Mr. Kinsella sees no role for the federal government at all. And calls that "federalism.""

Well, as a--gasp!--anarchocapitalist, I see no "role" for any state.

But as I have repeated many times, I have never denied that our federalist system grants certain powers and functions to the feds. I just believe these powers and functions are limited to those enumerated in the Constitution; and I think that the feds exceeding their mandated authority sets the dangerous precedent that they are not limited by the very Constitution that authorizes its existence.

If Alabama (or Maine, of course) were to begin executing black people or shooting Muslims and a federal court were to rule that illegal, Mr. Kinsella would quickly condemn the federal government for the unjust usurpation of state sovereignty.


Palmer is quick to lie and distort, slander and smear, but then he must make an effort to live up to his reputation.

What I would do in this case is--if anyone asked what my view of the constitutionality of the ruling was--take a look at the Constitution and see if I could identify a power given there for the feds to intervene in such unlibertarian state actions. The question of whether a given federal ruling is unconstitutional or not is separate from the question about whether it is libertarian or not. Palmer appears to accept the childish reasoning that wishing makes it so. That we ought to first figure out what we want the Constitution to say, and then just make up a reason that it "must" say this.

I prefer the more honest approach. I prefer to accurately and honestly identify what the Constitution means and is designed to do, whether that is libertarian or not. For example, the Constitution allows the federal government to impose an income tax. The Sixteeth Amendment exists. No amount of handwringing or intellectual gymnastics can get around this. Better to admit it and condemn it, rather than to disginenuously pretend that it does not "really" allow an income tax--how could it, after all, if there "should not be" an income tax. In other words, Palmer is making the oft-made mistake of activist-minded libertarians of seeing everything in terms of strategy. But there is a difference between ought and is.

"State sovereignty" simply means that some group is alleged to be above the law; but for a libertarian (which excludes some of the states sovereignty crowd), no one is "above the law." I recall Karl Hess saying many years ago that the only reason that conservatives favored states rights is that states were so good at oppressing people. Mr. Kinsella's guru HH Hoppe (who was recently enthusiastically interviewed in the extreme rightist German nationalist paper Junge Freiheit) is eager to be able to exclude black people, gay people, and a long list of others he's singled out in his writings as not deserving of toleration in his society. And what better way than to insist that states are "sovereign" and therefore able to oppress at will. How little has changed.

Palmer's comment that I would condemn a federal ruling that Alabama's executions of blacks is illegal on the grounds that it is an "unjust usurpation of state sovereignty" again shows a failure to understand the libertarian case for federalism (or what I have writen before). I don't whine about the "unjustness" of violating state sovereignty. For me, all states are unjust. But I believe that if a state is created, it is useful to have various constitutional or structural features in place to attempt to limit that state's abuses of individuals. These include enumerated & limited powers (especially for a central state in a federal system), specified rights, horizontal separation of powers (having equal and independent legislature, executive, and judiciary), and vertical separation of powers (sometimes called federalism, decentralism, whatever).

The question is whether it is wise, when setting up a central state, to limit its power by only granting it some powers, and leaving to the constituent states other powers. Just as horizontal separation of powers means each branch has certain roles and powers, as checks on the others, so in a vertically divided system, states would have some powers but not others, and the central state would as well.

It is quite obvious that it is a respectable libertarian position to favor both horizontal and vertical separation of powers as a mechanism designed to try to keep government within certain bounds. It is pathetic and disgusting for Palmer to try to smear someone holding this view as being in favor of execution of blacks. Palmer's resort to such desperate, vile smears would make one wonder if there is really no principled, sincere, libertarian grounds to oppose federalism. Of course, there are, but Palmer's hysteria and unfairness paints the opposite picture.


Tom G Palmer - 7/4/2005

It is worth remembering that taking of property is explicitly mentioned in the Constitution, which stipulates that, if taken, it shall be for public use, with due process of law, and with just compensation: "nor shall private property be taken for public use, without just compensation." The Fifth Amendment does not stipulate, unlike the First, that "Congress shall make no law...," but that private property shall not be taken, except under the conditions stipulated. States may have the constitutional authority to ban marijuana (they certainly do have such authority with regard to alcohol), but they do not have the authority to steal Anthony's house to give it to Tom because they like Tom more or because Tom is richer and could pay more taxes. Nor could they do so without due process of law, say, simply on the order of the mayor with the support of the local chief of police.

The constitutional case is fairly straightfoward. More significantly for advocates of liberty, federalism is important because it is a means toward liberty, after all, and the liberty of the people can be violated by state governments, just as it can be violated by the federal government. The federal government is not uniquely liable to commit acts of injustice. Under the U.S. federal constitution the states are prohibited from exercising certain powers and from violating at least some rights, just as the federal government is so prohibited. Surely, had Huey Long had himself proclaimed Duke of Louisiana, that would have been properly ruled illegal under the federal constitution, by both state and federal courts, but if not by the former, then certainly by the latter.

And surely there was some benefit to calling in the federal courts when local governments oppressed black people (sorry to "get all PC," but that actually did happen in Louisiana). The federal courts had some positive impact as a source of protection for rights to which black people could turn when the state courts were in league with the Council of Concerned Citizens and other supremacist groups. The policies of some state and local governments may not have been "genocidal," but they did allow lynchings of people on account of race. Does it have to be genocide for it to be unjust? Surely that can't be right. Rights inhere primarily in individuals, not in groups.


Anthony Gregory - 7/3/2005

If a local economy totally collapsed and people started starving to death, would the proper response be a federal relief program? And is to deny that federal intervention is the best solution the same as wanting to let people starve to death?

This whole "states executing people on the grounds of their race or religion" example seems a bit like a contrived strawman. If such genocidal policies occured, is a federal court decision really the solution most in order?

Also, which unlibertarian state policies should the feds not be authorized to overturn? Taxes? Regulations? Drug or gun laws? Mandatory schooling? Some of these seem to me potentially just as oppressive as, or more oppressive than, eminent domain.


Tom G Palmer - 7/3/2005

In other words, Mr. Kinsella would indeed object, on constitutional grounds, to the federal courts intervening to stop a state from executing people on the grounds of their race or religion. He took a long time to say it, but that's what his rambling remarks above mean. In his view, federalism implies a federal power to tax, but not a federal power to protect rights, despite the language of the 14th Amendment and other elements of the Constitution.


Anthony Gregory - 6/27/2005

I think these recent decisions further demonstrate the problem with trusting the Supremes to protect liberty. Sure, they overturned some regulations on wine importation. But on the medical marijuana question, they ruled on the side of federal intervention, and on the Kelo decision, they upheld the authority of governments to steal land. Certainly, we would have been better off if federal power were strictly limited (in which case we would still have the major state injustices that the feds only uphold for the whole nation, but at least we would have much less federal aggression).

There cannot be a system that reliably limits its own powers and those of smaller systems below it. The Supremes did not make me see any problems with decentralism that I didn't already. In fact, it's a problem with centralism that the central state will inevitably -- by the nature of it being a state -- rule in favor of power more often than in favor of liberty. Giving the central state the power to do good necessarily gives it the power to do bad. With Raich and Kelo, its power to do good did no good, but its power to do bad sure did bad.

When all is said and done, the Supremes, by ruling on this at all, did worse than if they had just not heard the case, for now every jurisdiction in the country will move toward the new draconian centralized standard on eminent domain. But the real problem is not that five federal officials in robes said that it's okay to steal land. The Supremes did not do anything but bless what the localities were already doing. The real problem is that governments are stealing land, and the people are not outraged.

To look at a bad Supreme Court decision as an indication that we need even more centralism, and more central overturning of bad local laws, is, I believe, similar to when a liberal sees the EPA let a polluter of the hook, or sees the UN rubberstamp an aggressive US military action, and concludes that the problem is not enough government central management and oversight. The Supreme Court doesn't work to protect liberty, and not a single member of it is worthy of libertarian sympathy. Sometimes, as in the Raich decision, even Clarence Thomas sounds pretty good. Then you look at the question on detaining prisoners in the war on terror without habeas corpus, and Thomas comes off as a totalitarian nut.


Tom G Palmer - 6/26/2005

What's remarkable is that Mr. Kinsella sees no role for the federal government at all. And calls that "federalism." If Alabama (or Maine, of course) were to begin executing black people or shooting Muslims and a federal court were to rule that illegal, Mr. Kinsella would quickly condemn the federal government for the unjust usurpation of state sovereignty. "State sovereignty" simply means that some group is alleged to be above the law; but for a libertarian (which excludes some of the states sovereignty crowd), no one is "above the law." I recall Karl Hess saying many years ago that the only reason that conservatives favored states rights is that states were so good at oppressing people. Mr. Kinsella's guru HH Hoppe (who was recently enthusiastically interviewed in the extreme rightist German nationalist paper Junge Freiheit) is eager to be able to exclude black people, gay people, and a long list of others he's singled out in his writings as not deserving of toleration in his society. And what better way than to insist that states are "sovereign" and therefore able to oppress at will. How little has changed.


John T. Kennedy - 6/26/2005

My view is that the Constitution is nothing but naked usurpation and the Kelo decision follows trivially from it.

I criticized you for falling back from one usurpation to another.


John T. Kennedy - 6/26/2005

Kinsella,

Take a deep breath and look at the thread. My post was in response to Pettit, not you. See the threading? He is the one who said he rejected arguments for property rights.

I didn't put any words in your mouth.


John T. Kennedy - 6/24/2005

I think I'm sweet.


John T. Kennedy - 6/24/2005

You're quite right: If there are no rights then there's nothing troubling about Kelo.


John T. Kennedy - 6/24/2005

Those powers were never limited. The Constitution explcitly empowers the state to take whatever it wants from you. What's the limit on what they can take? There is none.

The state is and has always been unlimited, which answers all three of your points. Any state you fall back to is not limited.


chris l pettit - 6/24/2005

How the property is being used and who is making the decision regarding that use?

I mean, we can all dance around the core issue by rambling about procedural aspects and other bs, but if you are really wanting to discuss rights, shouldn't we drop the procedural stuff and go to the central point? I have students all the time in my Rights Theory course that want to bring procedure into things, when if they want to speak in the language of rights, they should stay in that realm. In my own personal scholarship, having rejected the essentially non-sensical libertarian arguments regarding some absolute (or close to it) right to property (Locke and Nozicks conceptions have been pretty much contradicted by this point) and not being a huge fan of the federalism argument (you are human beings, then split into your artificial hierarchial boxes that only serve to create problems, not solve them...and take away from dealing with core issues), although I can see how it is necessary in a limited realm of governance (that exists in the rule of man, not the rule of law), I wonder, from a rights based standpoint, what the problem is? My biggest beef is that it still allows for takings that may not be in the public interest at all and leaves us in the realm of power based utilitarianism, without a real recourse in law to truly examine whether the takings are truly good for the community or not. While this is good in some instances (say, taking a large swath of land from a polluting company, or a Wal Mart that destroys local communities and economies...and giving the land to an economically viable community project or creating viable low income housing, or the like) where one can easily show that human rights and universalism is the goal, in many instances something that can be presented as improving the economy (seizing land to give it to a Wal Mart) is in reality disastrous for both the economy, the community, and rights in general. Not to mention the fact that it opens the door for discriminatory takings and the like. SO I too disagree with the way the case was decided. However, I find the arguments presented above to be either just as bad or missing the point entirely.

Stephan...your post on the international law was enlightening...even if I disagreed with a lot of it. Well...i can't say disagreed with the conclusions...but rather with the solutions offered. Being an international human rights lawyer, I can understand a lot of what you are saying and referring to, but still think that you deal with the problem at the periphery instead of going to the core of the issues explained...thus creating as many problems as you solve...and violating as many rights as your solution solves.

So the key question remains: who do we want deciding these issues? On the basis of rights, particularly property and the public good, democracy goes right out the window because of the individualism and ideological bias that ensures that rights will be violated somewhere by the "majority" voting ideologically. The libertarian theory fails (as it always does) for several reasons, most prominently the failure to take into consideration historical inequalities and that the rights framework is not based primarily on liberty and property, but rather on equality, justice, and dignity. Liberty and property simply return us to Hobbes "state of nature"...no right is absolute, and simply making the argument that rights "cannot be used to violate the rights of others" is circular and returns us to the problem of who decides such issues. Communism (or Marxism, etc) doesnt work because it is basically capitalism with one major corporation (or power center)...or several depending upon how one views the various competing state apparatus'. It seems to me that the only approach is to take a rights approach, but then supply a judicial outlet to be able to oversee such decisions should they infringe on the basic rights of individuals in the context of the community. Democratic theorists can still have their power based rule of man, but if the decision on takings infringes upon the individual rights of others within a social context, then the judiciary can reject the taking. This can be done on both a state and federal basis so as not to mess up your precious artifical hierarchy. The only catch is that it would have to be a highly educated, impartial, non-ideological judiciary...something that is impossible in the US since our system practically guarantees that we will have ideological judges and a failure of a judicial system (which we do). One would be much better off looking to international law and judiciaries...or the one here in South Africa.

By the way...the COnstitution is not a sacred holy document...you would be much better off looking to the international human rights documents and jurisprudence...Americans could stand to learn something from them. The Constitution deals in generalities...and is 200 years old. One gets lost in jurisprudence and procedure...and the whole thing becomes a joke. I am almost cynical enough to believe that we have all the areas of procedural and structural concentration just to keep the worthless lawyers in work...I just wish someone would actually deal with the core principles for once instead of going through the nonsense that, at the end of the day, has nothing to do with the reality of what is being discussed.

So I re-ask the question...who makes the decisions and why - since the whole system is based on societal relations, and there are no such things as individual entities (as proven by logic and science) since we all only exist because of our relationships within a society, what group or section of humanity is best suited to deal with issues of rights and the public good. I say a highly educated, impartial (as much as possible), non-ideological (or at least able to put it aside and recognise that it is an ideology), and well trained judiciary. We can then get into a discussion of how to choose said judiciary (I would again offer South Africa or the ICJ as an example...with a few changes). But what does everyone else think? Lets stop talking about procedure and start talking about the core issue...

CP


Aeon J. Skoble - 6/24/2005

Stephan writes: "what is the right way to construe the Constitution? The answer is that it was set up so that the feds only have limited powers. The result is they don't have the power to strike down the bad state law in question."
I disagree. Why should we care about limiting the power of the federal govt? Two possible reasons: 1, such limits protect state's rights, and 2, such limits protect individual rights. Since I reject 1 as a legitimate end, then the only reason I would have to care about limits on federal power is 2. But if the _point_ is protection of individual rights, then the limits of fed power can't be construed in such a way as to _hinder_ the protection of individual rights. We argued about this on the LibProfs email list 9 or 10 years ago. I see neither of us has changed out position on this matter! :-)


John T. Kennedy - 6/23/2005

So the 14th amendment was flawed. Why fall back from one flawed position to another when the Constitution jumped the tracks in the first three words of the preamble?


No Treason - 6/23/2005

I meant my post in jest. I do not believe that State Rights trump, and so think Kelo is a terrible decision. It is something that Steven's acknowledged that the federal jurisprudence is a "baseline," but the decision is absolutely absurd. Why not make the baseline a narrow interpretation of public use, and let states opt out of that, if you care so much about states rights?

I'm a federalist etc. etc., but let's not get hung up on federalism such that we lose sight of liberty. Of course, the Mises Institute people are probably excited about the outcome of the Kelo ruling.


Aeon J. Skoble - 6/23/2005

No, I disagree. States don't have rights, people do. I don't think it's helpful to fetishize federalism. I only care about individual liberty, not states. When the state govts protect liberty against federal incursion, great; but sometimes it's the other way around and the feds are the ones protecting individual liberty from state govts.


Mark Brady - 6/23/2005

No Treason has a point of sorts. However, if you believe that it is sound jurisprudence to apply the Bill of Rights to the states, it would seem that you would accept that the Supreme Court has the constitutional right to pronounce on the issue. That said, the Supreme Court seems to have disregarded the plain meaning of the Takings Clause of the Fifth Amendment.


No Treason - 6/23/2005

Why the gnashing of teeth? Seems to me that this is a victory for states rights, no? I mean, Justice Stevens did write:

We emphasize that nothing in our opinion precludes any State from placing further restrictions on its 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,22 while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised.23


Sheldon Richman - 6/23/2005

...to postconstitutional America. Fascism is in full bloom.


Mark Brady - 6/23/2005

One thing that libertarians and other private property enthusiasts could do would be to buy shares of stock in Pfizer and protest its thievery at the AGM.


Aeon J. Skoble - 6/23/2005

Yes, thanks for posting that. You put me to shame. I'm trying to complete two writing projects by deadline, so I really can't devote any time to analyzing this (it's bad enough I'm blogging at all!), but of course readers will be well served by looking into some of this. I also recommend going to Volokh (now) and Solum (soon).


Jason Kuznicki - 6/23/2005

I couldn't agree more. A bit of analysis, with links to several others, here.


Aeon J. Skoble - 6/23/2005

You're right John- the so-called conservatives are the real liberals here, and the so-called liberals are embracing fascism. As O'Connor puts it, "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms." My headline wasn't hyperbolic: this decision elevates "eminent domain" to new heights. Disgusting.


John George Pappas - 6/23/2005

Aeon, Once again, the so called conservative crew,Chief Justice William H. Rehnquist, as well as Justices Antonin Scalia and Clarence Thomas and Sandra D.O. have come to the aid of individual rights. Okay so this is not very consistant, but it shows the flaws with Supreme Court decsions once more that a simple majority can make law or overturn existing law. What's to be done with an imperfect capricious system?
John

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