Wednesday, July 06, 2005

Brief Essay on Kelo vs. its Libertarian Defenders

Kelo v. New London City, CT, versus the Free Society

Tibor R. Machan

There are some (relatively few) champions of individual or private
property rights who actually and oddly defend the recent US Supreme Court
ruling in Kelo v. New London City, CT, authorizing city governments to
condemn private property and then give it to other private parties because
the new owner will enhance economic development. (See attorney Stephan
Kinsella?s post at []
This purported libertarian justification seems to rests on the view that
while the federal government has no authority to take private property,
local governments do because the Bill of Rights constrains only the feds,
no one else. So the admonition in the Fifth Amendment to take private
property only for bona fide public use does not apply to New London City,
CT. Furthermore, the position holds, if government engages in taking, it
is better to do it for a genuine private than a nonexistent public use.

This is an opinion that would be conducive to a genuine anarchist and who
holds that no public uses exist at all, that is, nothing may legitimately
be used for citizens as citizens, such as court houses, military bases or
police stations. For bona fide anarchists these are all private projects.
(The details of why this is so is a bit complicated and, in any case,
misguided?libertarian ?anarchists? do endorse certain bona fide public
concerns only they refuse to call it that, just as they believe in
government but refuse to call it by that word and invent, instead,
neologisms such as ?defense agency? or ?justice service? or whatever. For
more, see Tibor Machan, ?Revisiting Anarchism v. Government?

There is much to be objected to in all this, however. There are, in fact,
some projects in any community that pertain to the maintenance of justice
and certain properly limited institutions are required for that purpose.
Since all citizens, qua citizens, adhere to certain very limited public
objectives, takings for public use amount to following exactly what all
the citizens want, namely, to make sure justice is upheld within the
community over which governments have been instituted so as to secure our
rights. For that strictly limited purpose it is OK to obtain property from
private parties since, in fact, they are on record consenting by their
very citizenship to such specific, limited takings. It is akin to why
citizens may be subpoenaed for trials?because they are on record, with
their citizenship, supporting the objective of achieving the pursuit of
justice. This point is rarely explored by libertarian anarchists?they
insist on reducing all public realms to private ones, thus hoping to
eliminate politics as a bona fide, legitimate concern in human community

However, limiting takings to bona fide public uses is in fact perfectly
justified within a free society because it amounts to nothing more than
the expression of what individual citizens all must have at least
implicitly agreed to, namely, the task of upholding justice. It is,
however, an abuse of this legal power to take private property for private
use, something to which citizens have clearly not agreed qua citizens,
quite the contrary. It is just so that private property and other rights
are effectively protected or secured that governments?including what the
libertarian anarchists call ?defense agencies??are instituted in free

The libertarians who support Kelo v. New London City, CT, do so, also, on
what they regard to be sound constitutional grounds, claiming that the
Fifth Amendment to the US Constitution properly limits only the federal
government, not city, county, and state governments which may make laws
entirely independently of any admonitions of the US Constitution. Because
of the belated incorporation measure that extends the scope of the US
Constitution to the entire country, they regard such application as urged
by most defenders of private property rights in Kelo to be misguided?only
those who love the Leviathan would then criticize Kelo; right minded
people would understand that Kelo is in fact sound from the viewpoint of a
proper understanding of the scope of the US Constitution.

Actually, although this may be proper legal theory in a highly esoteric
sense, as far as the libertarian objective of instituting government for
the purpose of securing our rights (as per the Declaration of
Independence), it is misguided tedium. Since the Constitution has been
applied, in ever since incorporation, to cases, for example, baring on the
rights to freedom of speech and religion, as well as to freedom to bear
arms and to be free of coerced confessions (the latter also part of the
Fifth Amendment) of all American citizens, it is now completely
unrealistic to insist on the reversal or incorporation. The best that we
can get is a possible reversal of the Court?s rulings in favor of
governmental measures that depart from what government is properly
authorized to do in a free society?federal, state, country or municipal
government?namely, the protection of every citizen?s individual rights.
Kelo failed in this miserably, so Kelo needs to be condemned, period,
whatever the technical razzmatazz about the structural undesirability of
incorporation may amount to.

The main motivation behind the contrary stance of some libertarians seems
to be that they consider empowering small governmental units to be less
hazardous than empowering the federal government (even if both should not
be so empowered). It seems to be especially objectionable to such
libertarians that a branch of the federal government would be empowered to
rule on what constitutes securing our rights (especially at the local or
municipal level), so when they fail to do this securing, or actually do
the opposite, these libertarians play the ?bite the bullet? gambit instead
of construing what the branch does wrongheaded. For instance, in Kelo v.
New London City, CT., these libertarians just hold that whatever the Court
says about anything other than the powers of the feds must be wrongheaded.
Yet that is effectively beside the point today. Moreover, it would render
some of the most potent legal measures in defense of individual rights?all
those listed in the Bill of Rights?nearly irrelevant other than when the
federal government usurps those rights. But these rights are actually
routinely violated by all levels of American government and if the Courts
can function as bulwarks against such violations, I say go for it. We need
all the help we can get and no arcane technicality of what is by now
pretty effectively obsolete constitutional law should stand in our way.

If one keeps in mind that libertarian ?anarchists? are really not
anarchists?since they do believe in law and its administration and they do
accept some agency having jurisdiction in such matters?and if one then
keeps in mind that takings for purposes of enhancing such administration
is necessary provided compensation is provided, then it is clear that
government has proper legal authority only to take private property for
public?which is to say, strictly limited legal administrative?use. The
incorporation issue is irrelevant here, not one concerned with the basic
principles of a free society. Kelo, then, did grave violence to individual
or private property rights and one can only work to have the Court reverse
itself, not to lend it any kind of credibility.

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