Doherty on Kelo

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Another libertarian who doesn’t get it. Brian Doherty’s piece on Kelo (pasted below, as this site requires registration) maintains, “A justice who believes in limits to government power is just what we need.” This is what centralist libertarians, and others who fail to recognize the importance of federalism and limited federal powers, repeatedly do: they refer to “the government” when speaking of what the federal courts can supervise. By wanting federal judges to “limit the government” or “governmental power”, one includes both federal and state governments. It makes sense for a federal judge to refuse to enforce an unconstitutional federal law; after all, he has an oath to uphold the Constitution, so cannot be part of any action by his (federal) government to violate it. But to review state government action and laws, this self-same federal judge needs to assume federal power over the states. And since the very Constitution that he should not violate in the case of an unconstitutional federal law delegates only a narrow set of powers to the federal government, the federal judge’s oath to uphold the Constitution requires him to refrain from striking down state laws when that would require him to seize power not enumerated in the Constitution.

In other words, the limits in the Constitution require a federal judge to strike down, in effect, unconstitutional federal law, and also requires him to recognize he has no jurisdiction over many (unlibertarian) state laws. To call for a judge to “believe in limited government power” lumps in state and federal power, thereby asking the judge to treat dissimilar situations in the same way. It is a call for the judge to, on the one hand, follow the Constitution (or a libertarian interpretation of it) to strike down bad federal law; and to disobey the Constitution to strike down bad state laws.

Want to bet, if you give judges the discretion to disobey the Constitution in one case, they’ll do it, oh, I don’t know, maybe in other situations?

Again, Daddy feels compelled to trot out one of his favorite quotes by Mises:

No socialist author ever gave a thought to the possibility that the abstract entity which he wants to vest with unlimited power—whether it is called humanity, society, nation, state, or government—could act in a way of which he himself disapproves.Note how including States and the feds in “the government” leads to a completely confused constitutional analysis.

Doherty writes,

A good libertarian legal thinker understands that when courts decide whether a government action is constitutional, they need to do more than just check whether it violates an explicitly stated right in the Bill of Rights. They need to notice the Ninth Amendment. It is too often forgotten, and is utterly central to the entire vision of government that America was created to further. It states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

In other words, our rights to be free of government interference don’t stop with the list contained in the first eight amendments of the Bill of Rights.

As ably put by libertarian law professor Randy Barnett, “The Constitution that was actually enacted and formally amended creates islands of government powers in a sea of liberty.” But Supreme Court jurisprudence for decades has reduced our liberties to a scattered archipelago, collapsing and sinking beneath an endless battering from waves of government powers, cresting ever higher.

Well, let’s stop right there. Barnett is right that the federal government was meant to be islands of powers in a sea of rights or liberty. This flows directly from the enumerated powers nature of the federal government. However, it is not true of States, which like all other states in the world, have plenary legislative or police power, limited in some ways, but not incomplete as the feds are.

The Tenth Amendment was part of the Bill of Rights, but it limits federal power by reserving power not delegated to the feds, to the states or to the people. It would be nonsensical to “apply” this to the States. So, what about the Ninth? I think the most reasonable construction of the ninth is that it is a rule of construction for the first 8 amendments: it says that just because those rights are listed and others aren’t, the others are not to be disparaged. What this means is that you can’t presume the listing of some rights means the feds have broader power than otherwise enumerated. I.e., it emphasizes he enumerated powers nature of the feds and makes it clear that the listing of rights does not grant any power to feds to violate other rights not listed.

But again, the States are not governments of enumerated powers. If they are, I’d like someone to show me where the federal Constitution enumerates powers of the States–the Constitution does not enumerate a power of Congress to outlaw murder; this is why a general federal law against murder does not exist and is unconstitutional. But there is also no power for states to outlaw murder enumerated. Does this mean all state laws against murder are also unconstitutional, as a federal law would be? Or does it perhaps imply that the Constitution is not the source of State law or authority? In any event, it is very problematic to apply the 9th to the States, for similar reasons that you cannot apply the 10th to the States. And the First by its terms says what Congress may not do, so it’s curious to apply it to the States. The Court itself has only “incorporated” some of the Bill of Rights to the States–e.g., only parts of the Fifth, none of the Second, and so on. It has yet to incorporate the 2nd and 3rd Amendments, the 5th Amendment’s guarantee of indictemtn by grand jury, and the 7th Amendment’s guarantee of a jury for civil trials.

So, we have only the 1st, maybe the 4th, parts of the 5th, the 6th, part of the 7th, and the 8th, that are “applied” to the states. Even though the 1st refers to Congress. The 9th and 10th are inextricably bound up with the notion that the federal government has only enumerated powers, so I think it is utterly confusing to apply them to the states.

And what about the original 2 articles of the Bill of Rights? It originally had 12 articles; the first 2 were not ratified right away. One of them was finally ratified in 1992, more than 200 years after approved by Congress, and became the 27th amendment (the last one ratified). It has to do with Congressional salaries; and the as-yet unratified Article I (“still technically pending before, and subject to, ratification by the state legislatures”) has to do with the size of the House of Representatives. So… does the 27th Amendment also get applied to the States? Are state legislators’ salaries now also limited by the federal Constitution? Or do libertarian centralists believe we just have to cherry-pick the rights implied or express in the Bill of Rights that “make sense” to apply to the States… as the Supreme Court has done? (and which led it to leave out the right to bear arms in the 2nd amendment, hmmm)

The design of the Constitution shows that it is utter nonsense to “apply” the Bill of Rights to the States. It was designed to limit the federal government, as the contorted attempts to fit parts of it on the States shows.

This is why it’s extremely troubling to keep referring to “government power” that the fed courts should limit. It is treating dissimilar things alike, leading to a schizophrenic view of how the Justices should abide by the Constitution.

But one concluding note: Doherty calls for Barnett to be nominated to the Court. Despite my critical comments above, Barnett would of course make a great Justice, and would be head and shoulders better than the rest of those bozos.

Here’s Doherty’s full column.

Tuesday, July 5, 2005
Why not a libertarian?
A justice who believes in limits to government power is just what we need

By BRIAN DOHERTY
Reason Foundation senior editor

Supreme Court Justice Sandra Day O’Connor has retired, and even more shakeups in the Supreme Court are possible with ailing Chief Justice William Rehnquist perhaps stepping down as well.

O’Connor morphed this past court term from usually reliable winning swing vote to impassioned dissenter. She bravely stood up against the court majority for American citizens’ rights to keep their homes and property, even when local governments want to snatch it for the benefit of private developers, in the Kelo case. She also thinks we should be allowed to make our own decisions on the state level regarding medical marijuana, as in her Raich dissent.

Her retirement gives President Bush an opportunity to do something bold, something good for America, and something that may even disarm the predictable firestorm of heavily funded opposition, obsessing over “acceptable” positions on abortion: go libertarian.

In his announcement upon O’Connor’s retirement, President Bush said he’d be looking to replace her with someone with “a high standard of legal ability, judgment and integrity and who will faithfully interpret the Constitution and laws of our country.” Instead of “interpret,” he might fruitfully consider going for someone who will “apply” the Constitution – especially its stated limits on government power – intelligently. Bush should seek a justice unafraid to be an “activist” in the preservation of the Constitution, one with no fear of political constituencies of either left or right who rely on a government that can do whatever it wants, for whatever reason it wants.

A good libertarian legal thinker understands that when courts decide whether a government action is constitutional, they need to do more than just check whether it violates an explicitly stated right in the Bill of Rights. They need to notice the Ninth Amendment. It is too often forgotten, and is utterly central to the entire vision of government that America was created to further. It states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

In other words, our rights to be free of government interference don’t stop with the list contained in the first eight amendments of the Bill of Rights.

As ably put by libertarian law professor Randy Barnett, “The Constitution that was actually enacted and formally amended creates islands of government powers in a sea of liberty.” But Supreme Court jurisprudence for decades has reduced our liberties to a scattered archipelago, collapsing and sinking beneath an endless battering from waves of government powers, cresting ever higher.

Where could President Bush look for this kind of potential justice, who could be trusted to act on a proper American vision of limited government power? My personal favorite is the just-quoted law professor and former prosecutor Randy Barnett, who argued the Raich medical marijuana case before the Supreme Court. Barnett notes that most Supreme Court opinions have historically “either stretched clauses beyond their original meaning to authorize governmental power or interpreted textual barriers [to power]out of existence.” He could be counted on not to follow that liberty-dissolving trend.

There are also currently sitting judges who tend to recognize that America’s Constitution created not a government that can do whatever it wants as long as it isn’t explicitly forbidden in utterly unambiguous language from acting, but one that can only do what it is permitted to do in unambiguous language. One of these is California’s own former Supreme Court Justice Janice Rogers Brown, recently appointed to the D.C. circuit Court of Appeals. Another reliable judicial foe of unlimited government is Brown’s fellow Californian, 9th U.S. Circuit Court of Appeals Judge Alex Kozinski.

While the philosophy of restricting government to its enumerated powers is associated with libertarianism, the principles behind it are conservative as well: conserving the integrity of the U.S. Constitution and of American liberties. A surprise libertarian choice for the high court would be a bold move, and would be the best legacy Bush could leave for a freer America.

4:27 pm on July 10, 2005