Machan on Kelo

My friend Tibor Machan has a column, Some Libertarian Confusion about Kelo v. New London City, CT, criticizing my article on Kelo. Unfortunately, Machan’s critique itself is confused. [Note: Machan’s short column linked above was apparently subsequently deleted and replaced by this newer version.]

First, Machan states that I justified Kelo’s ruling based “on the view that government has no authority to take private property in any case, including for public use (which the Fifth Amendment to the US Constitution sanctions, provided compensation is provided), and if it does engage in taking, it is better to do it for a genuine private than a nonexistent public use.”

But I did not justify Kelo’s ruling; I simply argued that the constitutional result would have been for the Court to have refused to strike down the state law for lack of constitutional authority to do so. The Court in Kelo upheld the law by applying the Fifth Amendment to the states and then giving it a bizarre interpretation–which I criticized: as I noted, “the Court’s reasoning was flawed.”

Moreover, my argument did not rely upon the anarchist notion that there are no valid “public uses”, nor did I unequivocally state that it is better to have a taking for a private than for a public use. My main argument was that the Fifth Amendment does not apply to the states. I only added an afterthought stating that it is odd for “libertarians to be more offended at takings that are for a private purpose than for those that are for a public purpose.” This is so especially because the taking of property itself is the harm; what is done with it afterwards is of secondary consequence. I stated my personal preference that my own property, if taken, be used for peaceful, private uses rather than by the state; but this preference is not an attempt to justify the ruling in Kelo at all.

As I said, my primaray argument was that the Fifth Amendment does not apply to the states. Machan’s reply:

this is not proper legal theory by now, not if one considers how the Constitution has been applied in, for example, cases baring on the right of freedom of speech and religion, as well as the right to freedom to bear arms and be free of coerced confessions (also part of the Fifth Amendment) of all American citizens.

I confess I am not quite sure what Machan is saying here, in his main substantive critique of my main substantive argument. He is confused to say that the rights to freedom of speech and religion, to bear arms, and to be free of coerced confessions, are part of the Fifth Amendment. These rights are included in the First, Second, and Fourth Amendments. I suspect he was trying to say that these rights are now part of the Fourteenth Amendment (not the Fifth). (Although I do not recall the right to bear arms having been incorporated yet by the Court, but I could be mistaken.) But he seems to be saying that my interpretation of the Constitution is wrong, because of Supreme Court precedent. I am not quite sure what his argument is here, unless he is either saying that Supreme Court decisions take precedence over the Constitution’s language and original meaning, or that he agrees with (which?) prior Court reasoning (but even libertarian legal experts who support incorporation reject the Court’s reasoning to date, which uses the Due Process clause instead of the Privileges or Immunities clause).

In any event, Machan has simply not even made an attept here to explain what is flawed in my argument that the Fifth Amendment does not apply to the States. If it is an argument that the Court has ruled otherwise, I find that argument flawed as either an appeal to authority or as based on the notion that the Constitution is “living” and does not have an original meaning.

Machan also writes:

The main motivation behind the states rights 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, 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.

I believe Machan, like many libertarians, is confused for some reasaon by the very idea of federalism, of vertical separation of powers. They just cannot seem to accept the view that the states predated the Union and are not empowered or created by the Constitution. My and other federalists’ view of “states rights” is not that “states” have “rights,” but that the federal government has only limited powers–those enumerated in the Constitution. And my view is not so much that the federal courts “should not” be empowered to review state legislation for compliance with rights in the Bill of Rights–but that they are NOT so empowered by the Constitution. Machan’s pointing to how Supreme Court decisions as somehow refuting my argument fails, because it is those decisions I am inherently critiquing. It would be question begging to say my critique of constitutional case law is flawed because the case law disagrees with me.

Finally, Machan notes:

The state’s rights issue is but a diversion here, not one of basic principle.

I never brought up states’ rights; Machan did. What we have is a case where the Supreme Court assumed the right to review a state law, even though the Constitution does not empower them to do so. Libertarians upset with the Court’s decision seem to endorse the notion that the Court does have the right under the Constitution to review state laws. I have tried to point out to those libertarians who do care what the Constitution says that this view is incorrect. What I cannot figure out is if Machan thinks the Constitution does apply the Bill of Rights to the states (and therefore my legal-constitutional arguments are wrong), or if he does not give a damn about what the Constitution says (in which case his appeal to the Supreme Court’s interpretation of it makes no sense) and just wants the Court to do “the right thing” regardless of its authorized power to do so.

So I have no idea what Machan thinks is a diversion. Perhaps the libertarians who want the Court to strike down every unlibertarian state law and who therefore just assume this must be the constitutional result, are the diversion. It seems to me that being concerned with keeping the large, central state limited by the Constitution that created it is not a diversion, and indeed related to the basic principle of trying to limit the state in order to protect individual rights.

***

Coda: In a private exchange with Machan, I noted:

My point was primarily addressed to the question of whether is legal, and a good idea, for the federal central state to be in charge of supervising state laws. [Concerns] about property rights and
the New London condemnation are valid and do not undercut at all my
view.

He replied to me, alleging that I would simply let people be victims of a socialist system rather than work with the system we have or favor incremental, ad hoc improvement, because it is not “pure enough.”

My reply:

You are wrong in characterizing my views. Where have I opposed working with or within the system, or incremental improvements in freedom?How is any of this implied by my views: (a) that it would be unconstitutional (not because I WANT it to be, but because it IS) for the feds to intervene here with the states; or (b) that it is preferable to honestly *identify* what the Constitution specifies, even if it is contrary to our preferences or beliefs; or or (c) that it is in general a good idea to insist the federal government refrain from acting in ways prohibited by the Constitution; or (d) that it is in general a good idea to have both horizontal and vertical separation of powers in a large, federal union such as ours?

I am not in favor or letting people suffer or be victimized by the state, just because doing anything to help would be sanctioning the system. It is a unwarranted and I believe unfair for you to distort my views this way. Where did I scott at incremental, ad hoc improvement? I am all in favor of this. Why do you imply otherwise? Are you sure you are giving me a charitable reading?

However, it is another thing to disagree with a given move or policy on the grounds that it is a move in the wrong direction. For example, I used to support the idea of educational vouchers, but now I oppose them. Not because they don’t go far enough or are only incremetnal or ad hoc improvements, but because the costs of the improvements are too high, in my view–even if education is improved and educational efficiency increased by vouchers, the drawback is that it increases the amount of tax dollars spent on public education and gives the state more control over private education.

Now you can disagree with me on this, but my objection is based on libertarian principles and on the grounds that the measure is a bad one, not that it is “merely incremental.” Likewise with decisions like Kelo. I assume you would have the court overturn the state law. I do not disagree that overturning the state law would be a good thing for liberty–for the Kelos at least, and perhaps for other potential victims of states. But I also recognize it is a bad thing for liberty too, in some ways–it further centralizes power in the feds, which increases the likelihood of federal violations of rights in the future; and it erodes the limits in the Constitution that are important.

You yourself obviously believe the Bill of Rights set forth important limits on “governemnt” in general, and that must include limits on federal power. So you yourself want the Constitutional limits on federal power to have some force and effect. As do I. That is exactly why I am concerned when the feds ignore these limits in order to seize the power needed to review state law. You seem to want to turn a blind eye to the feds’ eviscerating the principle of enumerated powers in the Constitution. As long as it achieves a good result in some cases, it seems to be okay with you. Don’t you see you are endorsing the principle that the feds are not really bound by the limits in the Constitution, which includes the Bill of Rights? I think it is dangerous to advocate this cherry picking approach. It is better as a PRACTICAL measure to insist the feds abide by the limits placed on them in the Constitution–all of them, both the idea of enumerated powers, and the specific limits placed on them in the Bill of Rights.

I am not even opposed to your Hobbesian point that we ought to take short-term, concrete improvements in liberty where we can find it. I don’t oppose that notion. I would not mind terribly a libertarian Justice on the court who flat out ruled for the Kelos because he can, and didn’t dishonestly try to justify his decision based on the text of the Constitution.

If by “working with the system we live in” means you think we ought to take it as “established” at this point that the Supreme Court is going to have final say-so on the constitutionality of acts of states, and then urge the Court to make the most constitutional or libertarian decisions, I don’t even oppose this very much. It means giving up on the idea of federalism as one of the constraints on federal abuse of power, but I can understand your being willing to make this tradeoff. I am bothered by it; but I can understand your view here. But this does NOT imply that the Constitution itself supports this. So if I point out the constitutional aspects of this–and many libertarains ARE interested in what the Constitution actually says–why am I attacked by those who don’t really care about the Constitution? An honest reply to me would be: you may be right about the Constitution, but I think the Court should do whatever it can to vindicate rights, regardless of the constitutionality of this. But instead, I get people telling me I am wrong about the Constitution…. because they think my interpretation is not… libertarian. Wishing does not make it so, as you know.