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Federalism, Eminent Domain, and Kelo v. City of New London

Eminent domain is the government power to forcibly take or purchase private property from an unwilling owner. My belief is that no government should have this power. For government to take property, when one of the express purposes of government is to protect property, is a complete inversion of government's role. The arguments in favor of eminent domain are flawed. (In particular, dominant assurance contracts (PDF) solve the "holdout problem".)

However, my purpose here is to discuss the Kelo v. City of New London case, not eminent domain in general. The interested may want to read the Court's opinions (PDF).


Stephan Kinsella wrote a libertarian defense of the Kelo decision, arguing that the correct legal outcome was reached — upholding the State court's decision allowing the seizure — although SCOTUS's reasoning was flawed, and despite his personal opposition to eminent domain.

I'll use Kinsella's article as my basis for comment. His argument is essentially that the Kelo decision is correct on federalist grounds — the federal government doesn't have the authority to intervene:

The Fifth Amendment's provisions on eminent domain limit the federal government only. The argument that it now applies to the States because it was incorporated into the Fourteenth Amendment is flawed. It is not part of "substantive due process" and the argument that it is part of "privileges or immunities" is not persuasive. Therefore, the federal Constitution neither regulates State takings, nor empowers the federal courts nor government to review or overturn State takings practices or laws. For the Court to overturn a State eminent domain law, it would have to assume power not granted to it in the Constitution, which means it would be ignoring the Constitution's limits and thus, acting like an unlimited government. Which is a bad thing.

Central to his argument is that "the Fifth Amendment — like the other rights listed in the first eight amendments, applied only to the federal government."

I have sympathy for the argument that the Fourteenth Amendment has been interpreted too broadly. But I don't think it's relevant in this case.

The Supreme Court Justices unanimously believe that the Fifth Amendment did not apply to the States until it was "incorporated" by the Fourteenth. This is apparently a settled matter, although it is one that I don't understand. It is clear to me why the First Amendment didn't originally apply to the States, but it is not clear why the others didn't. It is unhelpful that all the explanations of this issue I have read give examples from the First Amendment instead of the others. The First Amendment is easy; the others are hard!

I am in no way a legal scholar. I have never studied law. I'm just an unfrozen caveman lawyer a functionally literate pirate, and I have read the United States Constitution and believe that it is and was intended to be accessible to the layman. My plain-language reading of the Constitution tells me that the Fifth Amendment does apply to the States, not just to the federal government. Compare the text of the First and Fifth Amendments:

First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The First Amendment is explicitly a limit on the power of Congress, rather than a limit on the States. The Fifth Amendment has no such language and reads as a broad list of rights of persons. So, does the Fifth Amendment apply to the States? Yes!

The real question isn't whether the States are bound by the Fifth Amendment. In fact, Connecticut's Constitution contained a similar takings clause. The people involved certainly had the right to be be secure in their property but for the eminent domain exception. The real questions in this case are:

  1. Do federal courts have the authority to overturn state decisions?
  2. Is this exercise of eminent domain a violation of the takings clause?

The Constitution is designed to pit the three branches of government against each other to inhibit the accumulation of power. The executive branch may refuse to enforce a law it considers unconstitutional and the judicial branch may refuse to punish violations of a law it considers unconstitutional. The legislative branch may withhold funding from executive actions it considers unconstitutional, and has the power to set the jurisdiction of the courts and to confirm judges.

The States too are designed to be a check on federal power. The election of senators by state legislatures (until, unfortunately, the Seventeenth Amendment made them elected by the public) was intended to reinforce the fact that the States, not the Federal government, had most of the power. See also the Tenth Amendment. The States have, and have used, the power to declare acts of the federal government unconstitutional. For example, the Kentucky Resolutions declaring the federal Alien and Sedition Acts void.

No federal law has force unless all three branches of the federal government, and the States, agree that it is constitutional. Any one of them can refuse.

What about the constitutionality of state laws, as in the Kelo case? The same principle applies. Inasmuch as state laws affect the federal executive and legislative branches (the latter seeming unlikely), the federal authorities may decline to cooperate on Constitutional grounds (and basing their decision on the federal, not state, Constitution). The judicial branch's involvement is less clear, but by my reading it appears to be up to the discretion of Congress whether or not the federal courts have jurisdiction (aside from those items specifically described in Article III). I assume that proper procedures were followed as the case traveled to the Supreme Court, and ipso facto that that Congress really does assent to this review.

Given my belief that the Fifth Amendment did apply in this case, it is right for the Supreme Court to agree to hear the case. By Congress's assent, it does have the power to rule on the compatibility of this state law (from the SCOTUS opinions, "… the city has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development") with the Federal Constitution. (Congress, or the States, should restrain the Supreme Court from ruling on purely State Constitutional issues.)


I'd like to comment on a side issue at this point. Reading the comments to this post, people discuss abortion and slavery as examples for federalist reasoning.

My position is that rights not clearly listed in the Constitution should not be granted nationwide scope through judicial means. The Ninth and Tenth Amendments make it clear that people have rights not listed in the Constitution, and that the States reserve all powers not explicitly given to the federal government by the Constitution. In simple language, those two Amendments say "people have more rights than these, but they're up to the States."

The resolution of the slavery controversy, by the passage of the Thirteenth Amendment, is the correct way to federally protect a right.

The "resolution" of the abortion controversy, by the decision on Roe v. Wade, is not the correct way to federally protect a right. It takes circuitous logic to read a right to abortion into the right to privacy. The federal government is in the business of upholding the Constitution as written, not teasing things out of it that aren't really there.

Roe v. Wade should be overturned because it violates the Tenth Amendment. Until and unless an amendment is passed, the issue of abortion should be up to the States — as was the issue of slavery until the Thirteenth Amendment.

I am in favor of state decisions for rights that are unclear in the Constitution, and federal decisions for rights that are.

States should resist federal rulings that exceed the federal authority, either by meddling in purely state matters, or by granting or denying rights the Constitution does not clearly put under federal scope.


Matters of jurisdiction settled, let's turn to the final question: did this case violate the takings clause?

Absolutely. Read Justice Thomas's dissent.


UPDATE 2005-07-25 14:39:12 UTC: I appear to have sparked some sort of controversy with this post, which was not entirely unexpected. :) I'll revisit the matter of the scope of the Bill of Rights tonight, and my thanks to The General for clarifying the 9th and 10th Amendments — I was writing hastily. That too, I'll look at in more detail soon.

Tiny Island