Over at Catallarchy, Scott Scheule argues that the infamous-in-many-quarters decision in Kelo v. City of New London was rightly decided.
The reason ? Federalism.
Kelo is undoubtedly a glorification of federalism. In a decision nothing short of miraculous, the liberal members of the Court deferred to a state?s judgment. Is that not precisely what a federalist should want? A professor once told me the true test of your belief in individual freedom is when you think people should be free to do even the things that you would prefer them not do.
I propose that, by the exact same token, the true test of your belief in states? rights is when you think states should be free to do even the things that you would prefer them not do. The alternative is often to simply pick and choose which government, federal or state, you would like to defer to based on nothing more than your personal political preferences. It is not exactly an unpopular philosophy: indeed it is the policy of much of the Supreme Court today. Still, the blatant inconsistency seems unsatisfactory.
I think Scott has a point. There is a significant argument that the Supreme Court never should have even heard this case. The 5th Amendment, as originally written, applied only to the Federal Government, not the states. It was only through several decades of tortured jurisprudence that we have come to accept the idea that the 14th Amendment “incorporated” most (but not all) of the provisions of the Bill of Rights and made them applicable to the states, thus giving Federal Courts jurisdiction to determine the Constitutionality of the actions of state and local governments in a way that they did not have under the Constitution as originally understood.
The federalism argument basically says that the City of New London and the Courts of the State of Connecticut had approved the use of eminent domain, and the Supreme Court should not have stepped in to say that it was improper. It is the same principle that says that California should be permitted to legalize marijuana for medicinal purposes or that citizens of Oregon should be permitted to decide when they die. In both of those cases, the Federal Government stepped in to overturn state laws and the Supreme Court permitted it.
As Scott points out:
Assumedly many of us are federalists because we believe the federal government does things badly. Is there any reason why this principle, if true, should be the case in issues of, let us say, euthanasia or drug use, and not hold when it comes to issues of eminent domain?
Understandably, this post has proved to be controversial, both in the comments and elsewhere in the blogosphere. Eric Cowperthwaite, for example, argues that Kelo did more to damage the Rule of Law then it did to help state’s rights and looks into the original intent of the Takings clause of the 5th Amendment.
All of these are good points, but as much as I wish Kelo had been decided differently, I think the result of the decision was correct even if the Court’s reasoning was not.
Update: I should clarify the above to say that I now think that the result in Kelo was correct, based on the federalism argument made above. That the Takings clause of the 5th Amendment has been eviscerated of any real meaning throughout the years remains beyond question.
Linked with today’s Beltway Traffic Jam, Mudville Gazette’s Open Post, California Conservative and The Political Teen
