Libertarian novelist and activist L. Neil Smith comments on Kelo here. Smith first (rightly) condemns the Supreme Court case holding that federal marijuana laws trump state laws permitting marijuana use for medical purposes. Writes Smith:
the court held that, no matter what the Constitution says (or doesn’t say) to the contrary, the federal government has the legal power to outlaw marijuana—or anything else, for that matter—and that power supercedes any right a state or the people have to disagree. … Never mind that there is absolutely nothing in the Constitution—which represents the basic “operating system” for the United States government (See Article 1, Section 8, which spells it out in detail)—that gives it any power whatsoever to outlaw drugs or much of anything else.
Smith is absolutely correct, and here seems to recognize that the federal government is one of limited and enumerated powers. And note that he is here concerned with the Court’s declaration concerning what the “federal government” has the “legal power” to do.
But when he turns to Kelo, he drops the distinction between state and federal government and seems to forget the fact that the feds have limited and enumerated powers. He writes:
In [Kelo, the Court], asserted that government has a legitimate power to steal your home or anything else you possess and hand it over to whatever crooks shelled out the biggest contributions the last time around. … What it’s saying … is that politicos—any old politicos, including the white-belted plaid-pantsed halfwits and drunks making up the average city council—know better than you do what use to make of your property.
In a sense, he is right–the Court is implying this in their interpretation of the Fifth Amendment. But I don’t get the impression Smith thinks the Court should have upheld the Connecticut law based on notions of federalism. Rahter, he says that the Court here is asserting “that government has a legitimate power to steal your home….” But “government” here means state government. If Smith critiques the “assertion” by federal courts, that state governments have this “legitimate power” (whatever that means), then it seems to me he would prefer they say the states do not have this power. In other words, that the Supremes would have struck down the state law. But he has just lamented in the medical marijuana case that the federal courts don’t hold the federal government to its enumerated powers. Where is the power enumerated to review state legislation for compliance with the Fifth Amendment, which was originally designed to limit only federal power? Not to grant power to the feds to have further dominion over state governments.
Why cannot libertarians see this? Why can’t they see that the feds need an enumerated power to strike down state laws? And that this power is not granted?
