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Objectivists on Kelo


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Over on SOLOHQ, there is a discussion of one of Machan's pieceson Kelo, including my reply (also pasted below).


Coda: I have it on good authority that Murray Rothbard's correspondence indicates that around 1954, Herb Cornuelle convinced Ayn Rand to oppose eminent domain; she had peviously favored eminent domain because the Constitution (apparently) implicitly authorized it.


A few comments. First, until Tibor's recent column and this thread, I had never heard or even imagined that some libertarians and Objectivists believed eminent domain was ever justified. I was aware that some Objectivists and minarchists supported the idea that a citizen can be subpoenaed (and maybe forced to serve on a jury), but I had never heard the idea that this can be extended to support the idea of eminent domain. Is this a recent innovation by Machan et al., or is this a commonly held Objectivist view that I have somehow missed all these years? I don't mean this rhetorically; I mean it literally. Is this a common view, or something new? In any event, the notion seems breathtakingly unlibertarian to me, and I confess I am completely shocked to hear it so casually advocated by Objectivists.

Objectivists claim to oppose taxation; yet of course, this principle could be used to justify taxation as well. If you can force people to serve as a witness (and juror?), take their property, if it's "necessary" for the "basic state"--it should be obvious that this principle would have broader applicability, and would of course be expanded and abused by the State. You could easily expand it to include conscription, and taxation. Hopefully I do not need to explain why. But one short example: if you take property and pay for it, where does the money come from? Taxes, one presumes.

In any event, if the state has funds to compensate, then why is it "necessary" for the state to "take" property "for purposes of enhancing such administration"? If the state needs a building to house its police or tax collectors, why can't it simply buy it on the market like all of us do. It might be argued eminent domain is needed for large projects like roads and airports and railroads, but presumably Objectivists still believes these things ought to be private. The facilities needed for a bare bones state amount to some office buildings and police stations.

Why does it need to seize property and then pay just compensation for it, rather than just pay for it outright? As noted, it already presumably had some funds. And if it gets its funding voluntarily, say by donations from patriotic citizens--Objectivists purportedly oppose taxes--then perhaps some of them will donate some property for the prisons and drug enforcement offices.

Unless I have missed something, most Objectivists would strongly recoil at the notion of eminent domain. My guess is Rand herself would have been nauseated at the idea. But maybe I'm wrong. So here we have at least Machan and Kelly arguing for the State's power to take private property. Now I see why Machan was so upset at my suggestion that a taking for a private use does not seem fundamentally worse to me than one for a public use. S

ince I regard them all as theft, what the thief does with them afterwards is of only secondary import. But to a person who thinks takings for public use are justified, for me to suggest there is no principled difference between private and public use takings would imply he really supports all takings. But my comment that private takings are no worse than public ones was only a side point. My main argument was that the Court would have to continue to assert powers not granted to it, that it previously usurped, in order to strike down the New London taking. Unlike some other libertarians, I suppose I am actually bothered by the feds disregarding limits placed on them; I happen to want a limited federal government, crazy as this idea is.

Moreover, apparently at least some libertarian opponents of Kelo also support the state's right to take property--so long as it is for a "bona fide public use". This requires the state to be empowered to decide what a bona fide public use is, doesn't it? And doesn't this imply that there will be abuse? Should we be surprised when the agency we empower to take property when it deems it necessary, sometimes does it in ways we don't like? Perhaps this is why non-anarchist libertarians are so upset by Kelo: the very principles they support have led to this mess: the right of the feds to decide eminent domain standards on a national level has now imposed unjust standards on the nation as a whole; the right of local governments to take property for public use has been abused by these local governments to take property for a quasi-public use.

Mahoney asks, "My question is, why should they not, like any other market participant, buy property at the edge of town, if they can't find a seller in their preferred location?" Kelly answers:

They should ideally. However, who would determine where to place the seat of government would be a body elected by the citizens of Somelittletown, USA, i.e. the very ones you posit who will not sell.

He also writes:

In the case at hand of (I cannot stress this enough) rationally limited eminent domain, the right of an individual to own property is not annulled. His right to own a particular piece of property needed for the basic existence of a government is (and nothing else, except emergencies like war and natural disasters). Due compensation for appropriation ensures that his right to own any other property he is able to purchase on the market as a substitute continues.

In other words, if the State decides ("rationally"?) that it "needs" a particular person's house to build, say, its courthouse, even if the lot next door is for sale, then the State may take it--paying for it of course (with tax dollars?)--and it's not even theft; something about "superceding". The homeowner, well, let's just say that he actually agreed to the taking (he apparently does not agree now!). Kelly and Machan can assert that the state can only take when it's "rational" or in "limited" cases, but is this realistic?

As Mises noted: "No socialist author ever gave a thought to the possibility that the abstract entity which he wants to vest with unlimited power—whether it is called humanity, society, nation, state, or government—could act in a way of which he himself disapproves." And notice that Kelly writes, of me: "I can't believe Libertarians are defending local theft against federal theft based on constitutional law."

I actually oppose all eminent domain, and other crimes by states--whether American States or the federal government. That is one reason I favor the federal government actually being limited by the Constitution, which does not authorize it to review state laws in this regard. But I nowhere say the New London theft is justified or defend it. I think the citizens should rise up stop it; I think the Conn. S. Ct should overturn it. I simply do not believe the federal courts have constitutional authority to intervene, any more than the Canadian courts have jurisdiction here.

But Kelly actually does support at least some takings by the State, which I regard as local theft; and yet he calls me an advocate of theft? Interesting. Kelly elsewhere betrays he complete lack of regard for the Constitution's federalist system when he says that he considers the states and feds to be "divisions of the same basic entity." I don't know what a "basic entity" is or how that observation changes the fact that the Supreme Court is not authorized to review all state laws, or the fact that the Constitution primarily limits the feds not the states.

Why is it that Objectivists and centralist libertarians seem comfortable with every other state in the world--the US, Canada, Australia, Japan--NOT being subject to judicial review by the courts of some overlord state? And believe the American States alone must be supervised by another state? Each US State has its own constitution and supreme court, after all, just like other states in the world. Why isn't the State's own government as good as those of other governments? Why not just posit that they "should be" "rational"?

I wish someone could answer for me why there is this abiding, implicit hostility for and discrimination against American States. Why they are singled out as in need of special supervision by some overstate (who itself, apparently does not need such supervision by yet another overstate). Finally, Machan notes:

It would be nice if Kinsella & Co. advanced their arguments for Kelo being at least tolerable jurisprudence in a forum where other constitutional scholars chime in and so Kinsella & Co., are matched with the arguments of experts. I am not an expert in Constitutional jurisprudence but I can tell when some folks are dodging the crucial issues--like what kind of constitution would really be best for the maintenance of a society based on individual rights given the contemporary realities and reasonable possibilities.

I am mystified by this comment, as I have written extensively about this latter issue. It is no dodge at all. In fact the reasons to favor federalism are bound up with the constitutional discussion of Kelo, and I have discussed this in many place. What kind of Constitution is best? I would submit that in a large country founded by a number of sovereign, fully autonomous, large sub-states, such as in the US, it is reasonable and prudent for the Constitution that creates a new federal government by compact of the sub-states to have a variety of structural features designed to limit the new federal state. These features include horizontal separation of powers (having independent legislative, judicial, and executive branches), enumerated powers, non-exhaustive listing of rights as a further limit on the enumerated powers, having a bicameral legislature where one of the houses is not strictly representative, and, as a companion to the notion of enumerated powers, having divided powers between the central and constituent states, i.e. vertical separation of powers.

This means the states are responsible for things such as maintaining local law and order, police, etc.; the feds have the role of protecting the nation from external threats, settling disputes between States, ensuring an internal free-trade zone, etc. But this necessarily implies the central state lacks some powers, including the general power to review or nullify state laws that violate rights. Th

e role of the federal courts is to respect the Constitution and to ensure that it does not participate in a violation of the Constitution--which means refusing to help enforce federal action or law that is unconstitutional. Likewise, the role of state courts is to do the same to state law. Why anyone would think there needs to be federal court review of state law, especially when this would upset the vertical checks and balances and separation of powers designed into the Constitution, is a mystery to me.

Also, I don't really think you need to be a lawyer to understand these issues. People who are intelligent and learned enough to know as much as they do about rights and economics and history and political theory can understand this. And the legal debate is well hashed out. I am entitled to take a position and state it. For those whose political views require them to justify a given legal position, then if they are not interested in doing the work to justify their case, or not capable, they ought to refrain from entering the fray.

If a libertarian or Objectivist wants to argue that Kelo was wrong and the Court should have overturned the New London taking, this position necessarily entails that he believes the 5th Amendment--somehow--applies to the States, and that federalism has, and ought to have been, significantly eroded. If someone who has studied the issue says, well, the 5th does not actually apply to the states--is is really appropriate to tell him, "Look, go argue with the lawyers; we are talking politics here?" In fact, who does believe in incorporation? Well, the central state, for one, which invented the doctrine decades after the 14th Amendment. Are they to be trusted? A

lso, the same intellectuals and scholars who seek to justify other New Deal and socialistic policies, are in favor of it. Are they to be trusted. Also, semi-statist, unprincipled law professors, who reguarly preach socialist doctrines to their students. I suppose they are to be trusted too. There are some well-meaning libertarian types who believe in incorporation. So what? It seems to me the burden of proof is on he who wants to support an interpretation that would mean a fundamental weakening of federalism and a significant enhancement of federal powers. The text needs to clearly justify such a grant of power to the feds.

Can anyone sincerely, honestly believe that the meaning of "privileges and immunities" clearly means "all the rights enumerated or implied in the Bill of Rights? Really?


Stephan Kinsella

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.

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