Positive Liberty

The U.S. Supreme Court has ruled 5-4 in Kelo v New London, that the Takings Clause of the Fifth Amendment permits state governments to redistribute private property with the aim of maximizing tax revenue. In this case, a handful of homeowners will be evicted against their will to make room for a pharmaceutical plant. Liberals take note: If you really support the common man against big corporations, then you too should be outraged by this case.

While the decision reaffirms a position that has been the status quo for quite some time, still I am puzzled. The Takings Clause reads,

Private property shall not be taken for a public use, without just compensation.

That’s a full stop at the end, with not a word about tax revenue.

As Randy Barnett has argued in Restoring the Lost Constitution, we are certainly not to interpret the adjective “public” here to imply that government takings for private use are ever permitted–with or without just compensation. Such a power was never contemplated at the adoption of the Constitution, except to regard it with horror: The power itself implies strongly that private landowners hold their land only by virtue of a “public” utility, and, ultimately, that the property does not truly belong to them. In the final analysis, all property would then belong to the government.

As a thought experiment, consider the following: Under the present interpretation of the Takings Clause, what forms of government taking are not legitimate? Provided that “just compensation” is given, it seems there is nothing at all preventing any sort of taking, so long as some legislature votes to do it. Let’s also not forget that just compensation is largely in the eye of the beholder. Its very existence in the Constitution is something of a necessary evil: If the compensation truly were just, then governmental “takings” would not exist at all. Instead, the government would simply raise its offer enough to induce the property owners to sell of their own accord.

At least the Court’s conservatives put up a good show in the defense of private property. One day the view expressed in their dissent may yet prevail again, as it has for most of our nation’s history. Justice O’Connor did particularly well to cite the following:

An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority… A few instances will suffice to explain what I mean… [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it.” Calder v. Bull, 3 Dall. 386, 388 (1798)

I used to think that that was what the United States was all about. Now I learn that we’re really one giant revenue farm for the government.

Others discussing the case include Jonathan Bunch, Ed Brayton, Radley Balko, and an active discussion at SCOTUSblog, where the consensus view expresses surprise that Kelo’s position mustered even the four votes it received. (To tout my own court-watching abilities, I’d like to note that at the time of the oral arguments, I zeroed in on Justice O’Connor making exactly the point she later produced in the dissent. Many others had thought she would have sided with the government.)

I suppose I will be interested in discussing this, eventually. But first someone just explain to me how our government remains one of limited powers in light of Raich, Kelo, and the indefinite detentions of those who are neither accused of crimes nor are POWs. From where I sit, the circle has finally closed: The enemies of liberty on the left and the right have all come to an agreement in which big government wins no matter what the rationale or the venue. I only hope we will realize what is happening before even more damage is done.

Update: Jim Henley says much the same. It must be something in the Maryland water:

Among Kelo, Raich, the President’s assertion of his ability to strip the citizenship from any American and declare that person an enemy combatant, the institution of torture as an official if lightly denied policy, all of it stretching back to Wickard v. Filburn, we have completed our revolution-within-the-form. We are now, in principle, a totalitarian country, merely one where Authority is required to undertake certain showy gyrations for the entertainment of the crowd while pursuing its glorious visions. Perhaps we and they will continue to find the gyrations so entertaining that we’ll keep them in place. Even fascism must express itself through a local cultural matrix.

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