Betrayal at the Supreme Court
Tibor R. Machan
In the 1840s a debate raged about whether strikers may be punished as
economic saboteurs because they disrupted commerce. Some argued that the
police power of government authorized prohibiting strikes on the grounds
that government is to keep commerce in motion and forbid work stoppages.
This, indeed, is the theory of monarchical government in which the king or
queen or tsar decided how people must live, what purposes they must pursue.
At that early time of the American Republic, however, the courts
ultimately affirmed the principle of freedom of association by
invalidating the use of the police power whenever it involved the
violation of individual rights. Strikers, the courts held?in, for example,
in judge Lemuel Shaw's ruling in Commonwealth v. Hunt, (in MA, 1842)?
were exercising their right to withdraw from their employers?the right of
association?and this trumped any paternalistic police power that had been
imported into American society from abroad where, of course, kings and
other supreme rulers and not individuals were understood to possess
sovereignty. This is one reason, still, why many people around the globe
are considered, strictly speaking, to be subjects, not citizens?they lack
sovereignty, or self rule.
The US Supreme Court has now reversed itself on the score of what counts
for more in this country, individual rights or state power. In a 5 to 4
ruling issued on June 23, 2005, in Kelo v. New London City (CT), the court
held that the city of New London, CT, had the legal authority to place its
idea of economic development above the individual rights of citizens in
New London, in this case their right to private property. They decided to
expand the police power of government, in this case its eminent domain
power, way beyond what the US Constitution specified it in the 5th
Amendment. In that Amendment private property was deemed to be subject to
eminent domain measures only where the purposes of taking it was public
then individuals would have to be properly compensated for what was taken
from them. A public purpose is one that serves the interests of everyone
in the community in relationship to his or her citizenship. As citizens,
we are all in need of police stations, court houses, military bases and
the like, since all these serve the purpose of securing our basic rights
those who would violate them. (That is the public purpose governments are
instituted to secure for us all, as the Declaration of Independence makes
clear. The Constitution, in this case, merely codified this idea into the
law of the land.)
But New London, CT, as other cities across the USA, has decided to
violate the right to private property so as to promote the city officials'
conception of economic development. (This idea, of course, of ?economic
development? is foreign as an official goal to a political order based on
individual rights, since something can be one individual?s or group's
while not another?s, depending who one is, what one?s goals are in life,
etc. Such collectivist notions as ?a city?s economic development? are
antithetical to fee societies.) The individuals whose rights were so
violated brought suit which then went all the way to the US Supreme Court.
They had hoped that this body would show loyalty to both the spirit
and letter of the American legal tradition by following in the footsteps
of the court that ruled against the police power in the case of striking
workers and in favor of individual rights.
Alas, it wasn?t to be. And that is not really a very great surprise,
although it is, of course, a terrible disappointment and travesty of
American justice. The 5 to 4 decision pretty much follows in the footsteps
of other recent decisions in which individual rights have been trampled
upon?the case of medical marijuana, the case involving forcing farmers to
fund public service propaganda in which they do not believe, etc., etc.
Some people who profess a love of liberty actually defend this decision
on the grounds that the US Constitution should only be taken to limit the
powers of the federal government. By this line of reasoning your city,
county or state government could completely ignore the Bill of Rights and
censor movies, newspapers, and books, establish a government church, and
violate individual rights if only the federal government is prohibited
from doing so. But this line of reasoning does not work in a country that
is supposed to live by the principles of the Declaration of Independence,
ones that affirm every individual citizen?s unalienable rights to, among
other things, life, liberty, and the pursuit of happiness.
So, in fact, the Court?s ruling is yet another nail in the coffin of
individual rights in the United States of America. It was supposed to be
the protection of individual rights that constituted the prime public
purpose in this country. Now, instead, the several, disparate purposes of
pressure groups being served by various political bodies have taken center
stage and individual rights are legally dead.
Which is to say, soon we can say ?Good bye? to
beautiful, since it is the sanctity of individual rights?not the Grand
the Empire State Building, Hollywood movies or the Pacific shores?that
this country beautiful.
Machan teaches business ethics and political philosophy at Chapman
University, Orange, CA. For more on the topic of this column, see his
and Public Illusions (The Independent Institute, 1995). He is a research
fellow at the Hoover Institution and advises Freedom Communications, Inc.,
on libertarian issues.