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Woops, They Did It Again (Bad Supreme Court! Bad! Bad!)


Tags Legal SystemPrivate Property

The Supremes rules today (Kelo v. New London; related article) "that local governments may seize people's homes and businesses against their will for private development."

As I've noted, the conservative Justices are generally much better than the liberals, on both Constitutional interpretation and economic and civil liberties, Justices O'Connor, Scalia, Thomas, and Rehnquist dissented. The case concerned

some Connecticut residents whose homes are slated for destruction to make room for an office complex. They had argued that cities have no right to take their land except for projects with a clear public use, such as roads or schools, or to revitalize blighted areas. As a result, cities now have wide power to bulldoze residences for projects such as shopping malls and hotel complexes in order to generate tax revenue.

But in truth, from the libertarian point of view (which I take it favors decentralization generally, and honest interpretation of the Constitution in accordance with its original understanding), the dissent is mixed. The conservative Justices are correct, I believe, that the Fifth Amendment permits only takings for public use, not for private use; and that the type of taking concerned is best viewed as a taking for private use. However, the dissent is incorrect, in my view, in agreeing with the established precedent that the Fifth Amendment applies to the states. It originally limited only the feds. A state "taking" that was uncompensated, illegal, or for private use might have been prohibited under the state's constitution, but did not violate the Fifth Amendment. The Fifth Amendment was held to apply to the states by "incorporating" it into the Fourteenth Amendment in 1897.

As I've argued elsewhere, the incorporation doctrine of the Fourteenth Amendment is flawed. All nine Justices mistakenly see the Fifth Amendment as applying to the States. So in this respect, Thomas et al. are no worse than the liberals; they all make the same error. But given this assumption, the conservatives have be better legal analysis of the Fifth Amendment.

Had I been Justice, I would have refused to overturn the state law--although I agree it is a taking for private use--because the federal Constitution primarily limits the feds and not the states, because the Fifth Amendment does not limit the states, and the Fourteenth Amendment--neither its Due Process clause nor its Privlieges or Immunities clause--meant to "incorporate" the substantive provisions of the Bill of Rights.

So the liberal majority got it right in its conclusion, but not its reasoning; and the conservative dissenters were right about the analysis of the Takings Clause itself but failed to recognize that it should not be applied to the states in the first place.

My views on this are elaborated in this post, Libertarian Centralists. (See further discussion of this on the Liberty & Power blog here, including many of my comments elaborating on some of the points made above.)

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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