Kelo v. New London

by Liberty and Power

My take on the big Supreme Court eminent-domain ruling is at the FEE website here.

More Comments:

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

Nice column, Sheldon, although I disagree because of your disregard of the important principles of federalism and also the principle of enumerated and limited powers which helps restrain the feds. Quite often libertarians speak of "the government" without distinguishing between states and the feds. As you do too.

In your opening paragraph, you say, "Yesterday’s Supreme Court ruling permitting governments forcibly to transfer property through eminent domain from one private party to another for the sake of economic development did not come out of the blue."

Now, if by "governments" we mean any governments--well, look: the Supreme Court, I am sure, would refuse to outlaw, say, China's political prisons. Does that mean they are "permitting governments to keep political prisoners"? Canada's court, I am sure, will refuse to try to overturn the Kelo decision of the US Supreme Court. Does that mean the Canadian Supreme Court is "permitting governments to forcibly transfer property to private parties"? If not, why not? Probably because you don't regard the US Supreme Court as having jurisdiction over China, or the CAnadians over us. But if you recognize this, surely you should see that the US S.Ct can only be blamed for "permitting" state laws, IF it has the right to decide--jurisdiction, power, authority--in the first place. But that is the point of us federalists who believe the federal government can do only what it is empowered to do--only the things enumerated in the Constitution. If they seize power not granted to them, they are acting without limits.

I submit that for the feds to Constitutionally overturn state eminent domain laws, it must be granted the power to do this. The presumption is that it does NOT have power to perform a given action, unless it can be shown that it does. I have pointed out that this power is not granted in the 5th amendment, which is rather a limitation on federal power, not an expansion of federal power. It is also not in the 14th Amendment, as I have pointed out. So where is it? Please show us.

I also believe, frankly, that there is a lot of hyperbole and alarmism and handwringing about this decision. Look, the states already have the power to take private property. Why is it worse to take it for a private use (say, to build a shopping mall or CostCo) than to take it to allow a criminal, socialiast organization to use (to build an IRS building or socialist road or military facility)? I would rather my home be turned into a Wal-Mart than a bomb factory or prison housing innocent drug users, wouldn't you?

Sheldon Richman - 6/26/2005

The federalist argument would carry more weight had the Supreme Court based its ruling on ... federalism. It did not. Instead, it held that economic development is a proper governmment function and a public benefit that satisfies the public-use requirement of the Fifth Amendment's takings clause. All the rulers need do is proclaim "economic development" and they can take anything. I see nothing in which libertarians can rejoice. I'd prefer that neither Wal-Mart nor the the bomb factory take my home.