Federalism and the Bill of Rights: The Pros and Cons of Kelo by Roderick T. Long

Libertarians are divided over the Supreme Court's decision in Kelo v. New London to allow coerced property transfers to private parties to count as "public use." No libertarian likes the decision as it stands (since, for one thing, it clearly authorises an expansion not only of State-level but of Federal eminent domain power); the disagreement is over what the Court should have done instead. Some libertarians (see, e.g., Richard Epstein and Sheldon Richman) think the Court should have protected private property owners from this expanded assault on their rights by striking down the New London statute; other libertarians (see, e.g., Stephan Kinsella and Ron Paul) think the Court should have declined, on federalist grounds, any jurisdiction over eminent domain at the State level.

I find myself in partial agreement and disagreement with both sides. Let me explain why.

First we need to distinguish the normative question Would it be it a good thing for the Supreme Court to strike down the New London statute? from the legal question Does the Constitution authorize the Supreme Court to strike down the New London statute? After all, there is no a priori guarantee that these two questions must have the same answer.

Second, the normative question must be disambiguated into two further questions: Should the Supreme Court's policy in general be one that would lead it to strike down the New London statute? and Given the Supreme Court's actual policy in general, would it have been good in this instance for them to strike down the New London statute? These questions might turn out to have distinct answers also.

Let's begin with the legal question. Those who deny that the Supreme Court had proper jurisdiction in Kelo point to the fact that the Fifth Amendment, which stipulates that private property not be "taken for public use, without just compensation," was originally a restriction solely on Congress, and had no application at the State level. This is true enough; the question is whether Fifth Amendment protections were subsequently extended to the States by the Fourteenth Amendment, which forbids States to "make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Historical evidence suggests that the authors of the "privileges and immunities" clause did not intend this provision to extend the entire Bill of Rights to cover the States; but as a Spoonerite, I think what matters for legal interpretation is not the intention of the authors but the intention of the document.

This distinction is one that Lysander Spooner expounds at length in his 1860 treatise The Unconstitutionality of Slavery. A brief example should make it clear. Consider the case from Greek mythology of Oedipus, king of Thebes, who decrees that whoever has brought spiritual pollution upon the city through parricide and incest must be exiled. At the time he makes this decree, neither he nor anyone else realises that he, Oedipus, is the man who has committed parricide and incest. So in making this decree it is not the intention of Oedipus that he, Oedipus, be exiled. But once the truth comes to light, the only way to carry out the decree is to send Oedipus into exile; hence exiling Oedipus is what Spooner would call the intention of the decree, though not the intention of its author.

So in general, if legislators decree X without realising that X is in fact Y, then their decree must be interpreted as requiring Y even if the legislators never intended this. As I have written elsewhere:

If the law says that government employees must be paid in gold, then they may not be paid in iron pyrites, since iron pyrites is not in fact gold, even if those who wrote the law were ignorant of the difference. If the law says that fishermen may not hunt mammals, then in fact the law says they may not hunt dolphins, even if the lawmakers had thought dolphins were fish. Likewise, if the law says that involuntary servitude is forbidden, then the government may not conscript soldiers, since military conscription is in fact involuntary servitude, even if those who wrote the law did not recognize this.

Or, as Spooner writes:

If ... the fact were historically well authenticated, that every man in the nation had publicly asserted, within one hour after the adoption of the constitution, (that is, within one hour after he had, in theory, agreed to it,) that he did not agree to it intending that any or all of the principles expressed by the instrument should be established as law, all those assertions would not be of the least legal consequence in the world; and for the very sufficient reason, that what they have said in the instrument is the law; and what they have said out of it is no part of it, and has no legal bearing upon it. ... If every individual, after he had agreed to a constitution, could set up his own intentions, his own understandings of the instrument, or his own mental reservations, in opposition to the intentions expressed by the instrument itself, the constitution would be liable to have as many different meanings as there were different individuals who had agreed to it. And the consequence would be, that it would have no obligation at all, as a mutual and binding contract, for, very likely, no two of the whole would have understood the instrument alike in every particular, and therefore no two would have agreed to the same thing.

So the best interpretation of a law may not be the one the authors intended. Of course the authors' intent is relevant, because what their words mean depends on what they intend; the reason their term "gold" does not refer to iron pyrites is that they intend the term to refer to whatever is relevantly similar in deep explanatory structure to their paradigm samples of gold. But it is not this intention alone, but this intention in conjunction with possibly unrecognised facts of reality, that determines whether a particular chunk of material counts as gold – just as it is not the (conventionally defined) rules of chess alone, but those rules in conjunction with the actual moves and positions of the pieces on the board, that determine whether a checkmate has occurred – even if the players fail to notice the checkmate! (I here draw on the arguments of two philosophers who played a decisive role in overthrowing conventionalist theories of meaning in the 1970s: Saul Kripke, in Naming and Necessity, and Hilary Putnam, in Mind, Language, and Reality. Interestingly, their contributions were partly anticipated by Ayn Rand in her Introduction to Objectivist Epistemology; on this see my article "Reference and Necessity: A Rand-Kripke Synthesis?" forthcoming in the Journal of Ayn Rand Studies.)

So regardless of what the authors of the Fourteenth Amendment may have intended, if the best interpretation of "privileges and immunities of citizens of the United States" includes the rights enumerated in the Bill of Rights, then the extension of the entire Bill of Rights to cover the States is what that provision means. And it seems to me that this is indeed the most defensible interpretation. Where are the privileges and immunities of U.S. citizens to be found, if not among those rights guaranteed to U.S. citizens by the Constitution? And what could license interpreting the phrase to mean some of those rights rather than all of them? I conclude that the Fourteenth Amendment does extend the Fifth Amendment to govern the States, and so that the Supreme Court would have been within its Constitutional rights to strike down State-level legislation authorising compulsory property transfers to private parties.

It may be objected that the process by which the Fourteenth Amendment was originally ratified was illegitimate. That may well be so; but from my point of view it doesn't much matter, since I think the process by which the entire Constitution was ratified to begin with was equally illegitimate. My present concern is with what the Constitution's provisions mean, not with how they got into the Constitution in the first place or whether they are there legitimately.

I shall also leave aside – though it would be worth revisiting at some point – the question of whether the Fourteenth Amendment actually affects city ordinances (New London is of course a city, not a State) or only States, since it is only States that are mentioned in the Amendment. In any case, on my reading the Constitution does at least restrict the States' powers of eminent domain.

Indeed, not only does the Constitution authorise the Court to strike down the State-level use of eminent domain for private beneficiaries, but I will go further and say that it authorises the Court to strike down any and all State-level use of eminent domain, even for "public use." Why? Well, the Fifth Amendment stipulates that private property cannot be taken for public use without just compensation. In order to know how to apply this provision, we need to know what "just compensation" is. But thanks to libertarian rights theory, we do know: what justice demands when property is sought is compensation sufficient to induce the owner to surrender it voluntarily. Hence the Fifth Amendment, properly interpreted, does not merely limit the exercise of eminent domain to "public use," but forbids it entirely, by decreeing that government may not take private property except by voluntary sale.

Of course this is not the interpretation of "just compensation" that the authors of the Fifth Amendment intended; but then the language of the Fifth Amendment does not say to give property owners "compensation that we think is just." They could have written that if they had so chosen; but instead they wrote that "just compensation" – i.e., whatever compensation is actually just – is what is required. Just as Oedipus, in decreeing that the parricide should be exiled, was thereby unintentionally decreeing his own exile, so the framers, in decreeing just compensation, were thereby unintentionally forbidding eminent domain entirely. And subsequently the authors of the Fourteenth Amendment unintentionally extended this prohibition to cover the States.

It's important not to confuse this Spoonerite approach with the "living Constitution" approach, in which the original meaning of various Constitutional provisions is discarded in favour of newer meanings that have evolved over time. On the contrary, for Spoonerites the meaning of "just compensation" is exactly the same today as it was 200 years ago; the word "just" invokes the objectively discoverable nature of justice, which remains the same over time even if our understanding of it does not.

Legal philosopher David Lyons – who, by applying the Kripke-Putnam theory of reference to the realm of law, has developed an approach of constitutional interpretation strikingly like Spooner’s, at least in structure (not so much in content; Lyons is no libertarian) – makes the point, incidentally using the just compensation clause as his example:

Imagine that you and I disagree about the substantive requirements of social justice. We then differ as to how the concept of justice applies; we differ, that is, about the principles of justice. This is possible if the concept of justice admits of different interpretations, or competing conceptions. ... Now consider a constitutional example. ... a court applying the just compensation clause would not necessarily decide a case as the original authors would have done .... Instead, a court would understand the Constitution to mean precisely what it says and thus to require just compensation. A court would need to defend a particular conception of just compensation ... against the most plausible alternatives. ... Contested concepts do not seem confined to morality and law. Their properties are at any rate similar to those of concepts referring to natural substances or phenomena, such as water and heat. On a plausible understanding of the development of science, for example, the caloric and kinetic theories of heat are (or at one time were) competing conceptions of the concept heat. ... If, as most people would agree, 'heat' refers to a determinate physical phenomenon, there can be, in principle, a best theory of heat. This implies that there can be a best conception of a contested concept. This suggests, in turn, that contested concepts in the Constitution might have best interpretations. ... Now if the idea that the Constitution includes contested concepts is correct, then to apply the Constitution in terms of their best interpretation is, in effect, to apply doctrines whose application is called for by the original Constitution. But, just as interpretation of the concept heat requires more than mere reflection, any interpretation of this type inevitably draws upon resources that are neither implicit in the text nor purely linguistic. It .... requires that courts applying 'vague clauses' of the Constitution interpret 'contested concepts,' which requires reasoning about moral or political principles.
(David Lyons, "Constitutional Interpretation and Original Meaning," pp. 85–99; in Social Philosophy & Policy 4, no. 1 (Fall 1986), pp. 75–101.)

This interpretation, of course, assumes that the word "just" in "just compensation" means what it ordinarily means: "in accordance with justice." Stephan Kinsella, by contrast, has suggested to me that "just compensation" is simply a technical term for paying "fair market value" (he should probably say something like "prevailing market value," since "fair" is going to raise the same issues that "just" does). Now I certainly agree that what the framers intended was probably the payment of prevailing market value; but I find it hard to believe that the phrase "just compensation" is so far a term of art that "just" has no independent meaning in it, just as "handle" has no independent meaning in the phrase "fly off the handle."

How much power, on my interpretation, does the Constitution grant the Supreme Court? On the one hand, quite a lot – since the best (i.e., the libertarian) interpretation of the Fourteenth Amendment's guarantee of "equal protection of the laws" is going to "enact Mr. Herbert Spencer's Social Statics" (in Justice Holmes' famous phrase), thus authorising what I've elsewhere called "the wholesale imposition of libertarianism by the federal judiciary on the States." (For recent defenses of such an approach see Randy Barnett's book Restoring the Lost Constitution: The Presumption of Liberty and Damon Root's article "Unleash the Judges: The Libertarian Case for Judicial Activism.") On the other hand, less than might appear – since as I read the Constitution it authorises secession. (According to the Tenth Amendment, the States reserve all powers not granted; since nowhere in the Constitution is secession forbidden, it's reasonable to infer that secession remains a reserved power.) This converts Constitutional guarantees of rights into something like club rules: States are required (by the Fourteenth Amendment) to abide by them so long as they remain within the union, but nothing forces them to remain.

This I think was Spooner's reading also. It's often assumed that Spooner must have undergone a radical change of mind between the apparently centralist Unconstitutionality of Slavery (which favours, and interprets the Constitution as authorising, a Federal ban on slavery in the States) and the apparently decentralist Constitution of No Authority (which defends Southern secession, and attacks the Constitution as a pseudo-contract unjustly imposed by the Union on the States). In fact the difference between the two works is not so large; already in The Unconstitutionality of Slavery Spooner appears to treat Federal jurisdiction over the States as conditional on the Union's remaining a voluntary compact, when he writes:

As long as the parties acknowledge the instrument as being their contract, they are each and all estopped by it from saying that they have any intentions adverse to it. ... If the parties wish to repudiate the intentions of the instrument, they must repudiate or abolish the instrument itself.

(This doesn't mean that Spooner thought that slavery should be left undisturbed once a slave state has seceded; on the contrary, he advocated guerilla warfare against slaveholders.) And in The Constitution of No Authority Spooner is careful to explain that what he is attacking is the Constitution "not as I interpret it, but as it is interpreted by those who pretend to administer it," adding that in his view "the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize." In short, Spooner's position in both works is that the Constitution, properly interpreted, is a voluntary compact that mandates respect for libertarian rights but allows secession. (If there is a change of mind between the two works, it concerns not the interpretation of the Constitution, but rather the value, as a political strategy, of continuing to appeal to the Constitution: even if the Constitution has not "authorized such a government as we have had," Spooner finally concludes, it has at least proved "powerless to prevent it," and so is "unfit to exist.")

Whatever the Constitution, properly interpreted, has to say about federalism, we still need to address the distinct question of what it ought to say about federalism. (Even though interpreting certain contested phrases in the Constitution requires drawing on the correct libertarian theory of justice, that does not imply that the best interpretation of the Constitution will inevitably be the most libertarian one. There just isn't any way, for example, to interpret such provisions as "Congress shall have power to lay and collect taxes, duties, imposts, and excises" (Article I, Section 8) in a manner consistent with correct libertarian justice; the best interpretation of the word "taxes" is not "voluntary contributions." Of course, one might interpret the Fifth Amendment's just compensation clause as superseding this provision and annulling the taxing power; since it's an amendment it automatically takes precedence over anything in the original document. Sadly, the Fifth Amendment, construed as a ban on taxation, is itself thus far amended by the Sixteenth.)

On this issue, I am opposed to giving the Federal government the power to impose libertarian standards on the States, for the same reasons that I would oppose giving the United Nations the power to impose libertarian standards on the U.S. This is not because I think federalism takes precedence over individual rights, but rather because I think federalism is a better long-run strategy for protecting individual rights. As Isabel Paterson notes in God of the Machine: "The proper use of a necessary power and the proper agency for its use are entirely different questions."

Now I would not oppose giving either the U.S. or the U.N. the power to impose libertarian standards on its members if this power could be guaranteed to be exercised in a reliably libertarian manner in actual practice; but what guarantees this? The power to impose libertarian standards is also the power to impose non-libertarian standards; as Barry Goldwater (or perhaps Karl Hess) famously remarked, "A government that is big enough to give you everything you want is big enough to take it all away."

In any federal system, it is to be expected that at some times, or on some issues, the central government will be more libertarian than the member states, and that at other times, or on other issues, the member states will be more libertarian than the central government. If the central government could be counted on to be consistently more libertarian than the member states, then obviously the central government should have the power to strike down local legislation. If the member states could be counted on to be consistently more libertarian than the central government, then obviously the central government should not have the power to strike down local legislation. But in reality it's inevitably going to be some of each; and there's no way to rig the system so that the central government wins whenever it's right and loses whenever it's wrong. (One can of course write into the Constitution some such provision as "the central government shall have the power to strike down unjust legislation, and no power to strike down legislation that is just"; but such paper guarantees are of limited utility when the agency that has to obey them is the same agency that gets to interpret them.)

Since neither the central government nor the member states can be counted on to be consistently libertarian, I favour decentralisation simply because it allows for more competition: if Alabama passes a crummy law there's the hope that I can move to some other State with better laws, whereas if the Federal judiciary imposes a crummy decision on the entire country then my ability to vote with my feet is much weaker. This is ultimately a reason for decoupling jurisdiction from geographical territory entirely; but, short of that, it's at least a reason for confining decision-making power to the local level as far as possible. This is especially true if member states are denied the right to secede; but I think centralisation has its dangers even when secession is permitted, at least if the right of secession is limited to states rather than being extended (as ideally it should be) to individuals. (Even when the government of a member state consents to Federal requirements, that does not mean that all its citizens do.)

Hence I conclude that the Constitution, correctly interpreted, is more centralist than it should be. If the Fourteenth Amendment were being proposed today, I would not favour its adoption. Indeed, if the Constitution itself, with or without the Fourteenth Amendment, were being proposed today, I would not favour it; I would prefer the more decentralised Articles of Confederation (or better yet, market anarchy, but the Articles would be a good start).

So as a matter of general policy the Federal government ought to follow a hands-off policy toward State-level legislation. And in a world where federalism reigned as it should – a world in which libertarian activists could concentrate their energy at the local level – the Supreme Court would quite properly have refused to strike down local eminent-domain legislation.

In the actual world, however, where federalism does not remotely reign as it should, it is by no means clear that refusing to strike down local legislation is the decision we should hope for. If refusing to strike down the New London statute were the inauguration of a consistent decentralist policy, that would be one thing; but the Supreme Court has shown no such inclination in that direction. We've seen recently – in last month's Raich v. Ashcroft, for example – that the Court is perfectly happy to override State-level legislation (and fairly libertarian legislation, at that) when it so chooses. So the price of the Court's decision in Kelo – an increase in rights-violations, human suffering, and disruptions of people's lives through increased use of eminent domain – is not, so far as I can see, compensated by any significant gain in decentralisation.

[I]t is an anachronism to think of our State governments as in any serious sense counterweights to Federal tyranny. While Federal and State governments may clash from time to time ... for the most part the State and Federal governments are entwined into a single criminal organisation that oppresses us. The States have become more akin to administrative departments within the Federal government than independent agents affiliated with it; the Federal government so regularly overrides the States that this latest issue is only a tiny drop in an enormous bucket. As a result, I'm more inclined to throw my strategic support to whichever head of the hydra is supporting the less oppressive policy on any given issue.

In other words, now that the States no longer exist as independent political entities but have essentially been absorbed into the Central Leviathan, the question at issue in Kelo was basically whether branch A of the Central Leviathan should prevent branch B of the Central Leviathan from violating property rights. Under those circumstances, I'm inclined to answer yes.

So while I support decentralisation (and would prefer complete disunion), so long as the States show so little tendency even to seek greater independence but instead waddle eagerly to the Federal trough, I favour strategic support for the Bill of Rights, whether at the State or the Federal level.

So there's my position: a "centralist" (though secessionist) interpretation of the Constitution, a "decentralist" prescription for general Supreme Court policy, and a "centralist" (though still secessionist) prescription for what Supreme Court decisions we should support under current conditions.