Thomas over at Liberty Corner takes both Scott Scheule and I to task for the argument, outlined in my post from yesterday and first raised by Scott on Monday that the Supreme Court’s decision in Kelo v. City of New London was correct as viewed from a federalist perspective.
At one point Thomas argues:
Being a libertarian and being a federalist are two entirely different things. A libertarian would oppose government land-grabbing regardless of which level of government is doing the grabbing. Scott simply has to decide whether he’s a federalist or a libertarian.
This is correct. However, the choice is not so much between being a libertarian and being a federalist as it is between being a libertarian and being faithful to the original understanding of the Constitution. Judicial activism can exist not only on the left, but also on the right and there have been those who have argued for what is essentially a form of libertarian judicial activism which concerns itself more with the results of a judicial decision than with whether that decision is a correct interpretation of the Constitution. If you believe that judges should be faithful to the original understanding and intent of the Constitution, as I do, then that means being a federalist.
Federalism was at the heart of the Constitution when it was drafted. The Federal Government and its institutions, including the Supreme Court, were intended to be weak as compared to the states. This can be seen in the Constitution itself, which strictly defined the powers of Congress and the President but has very little to say about the powers of the states.
Under this understanding, the idea that the United States Supreme Court has the power or authority to tell the State of Connecticut or one of its municipalities that it has acted unconstitutionally would have been anathema to the Founders.
Responding to my thoughts on the matter, Thomas goes on to say:
Now, whatever you may think about “incorporation,” certain parts of the Bill of Rights were meant, from the beginning, to bear on certain kinds actions by any and all governments in the United States. The Fifth Amendment clearly belongs in that category, as do Amendments II, IV, VI, VII, VIII, and X.* It’s important to remember that the U.S. Constitution wasn’t meant (or written) as a “set of rules” applicable only to the central government but, rather, as a sorting out of the rights and powers of the newly created central government, the governments of the various States, and the people. The Bill of Rights must be understood as a clarification of that broader sorting out, and not simply as a set of restrictions on the central government.
This issue was addressed by the Supreme Court in 1833 in Barron v. Baltimore 32 U.S. 243. In that case, decided only 42 years after ratification of the Bill of Rights, the Court held that the Bill of Rights in general, and the Takings Clause of the 5th Amendment specifically, applied only to the actions of the Federal Government and did not impose any limitations at all on the actions of state and local governments.
Writing for a unanimous Court, Chief Justice Marshall stated:
The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.
It was not until a series of Supreme Court decisions beginning in 1925 that this view changed. In those case, the Court determined that the Due Process clause of the 14th Amendment “incorporated” some, but not all, of the provisions of the Bill of Rights and made them applicable against the states. Wikipedia has a useful timeline of when various provisions of the Bill of Rights were incorporated.
I will leave for future posts the question of whether incorporation is a sound interpretation of the Due Process Clause. For now, though, it is clear that, as originally understood, the Supreme Court had no right determining the legitimacy of the taking in Kelo
