Federalism and Libertarians on Eminent Domain

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Center Urges U.S. Supreme Court to Protect Property Rights notes the friend-of-the-court brief filed with the U.S. Supreme Court by the presumably libertarian Center for Individual Freedom and Pacific Legal Foundation. Seizing property by emiment domain (“condemnation” or a “taking”) is considered constitutional if (a) it is done for a public purpose, and (b) adequate compensation is provided. The brief argues that the Supreme Court should prevent local governments such as cities from seizing private property under the guise of promoting economic development–i.e., that such takings are not really for a “public purpose”.

The problem with the brief is that it accepts the view that the federal Constitution’s due process limits on eminent domain apply to the states as well as to the federal government. But this flies in the face of federalism. I’ve discussed the importance of federalism before–in Supreme Confusion, Or, A Libertarian Defense of Affirmative Action, Sandefur and Federal Supremacy, and In Defense of Evidence: Against the Exclusionary Rule and Against Libertarian Centralism–one of these in response to Timothy Sandefur, one of the authors of the brief.Of course state or city action that takes private property is unlibertarian. It is theft. This is true even if the owner is compensated and the taking is for a public purpose; and it is certainly true if adequate compensation is not paid or if the taking is not for a public purpose.

However, the brief accepts the logic that the Fifth Amendment–which originally limited only the federal government, not the states–has been “incorporated” by the 14th Amendment to apply to the states. First, note that the Fifth Amendment states: “[no person shall] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

This was part of the Bill of Rights enacted in 1791, two years after the Constitution was ratified. It is universally accepted that these limits and others in the Bill of Rights limited the federal government and not the states. For example several states in 1791 actually had established religions (e.g., Congregationalism), and were not in violation of the First Amendment, which only prohibited the Feds from establishing a religion. In fact, for the Fifth Amendment’s limits to “apply” to the states in effect is a type of grant of power to the feds to enforce this limit as against the state. I.e., to say any of the rights in the Bill of Rights apply to the states means the Bill of Rights–meant to limit the power of the new federal government–is really a grant of power to the feds. This is absurd.

The theory now is that the 14th Amendment, which followed the War to Prevent Southern Independence and does apply to the staes, “incorporates” most of the rights in the Bill of Rights and applies them to the states. This theory, which in my view is groundless, confused, unlibertarian, and undermines federalismt–an important structural feature that limits federal power–is endorsed by “centralist” libertarians such as Sandefur and Roger Pilon of the Cato Institute (see my articles linked above for more detail on all this).

The theory of incorporation–not even invented until about 50 years after the 14th Amendment was illegally ratified–is especially absurd in the case of the 5th Amendment. This is because the 14th Amendment itself provides, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” I.e., it has a Due Process clause. It prevents states from violating due process rights. Yet the Fifth Amendment, as noted above, provides, “[no person shall] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”. I.e., it protects due process rights. But if the 14th Amendment “incorporates” the Fifth Amendment, it already protects citizens’ due process rights from state infringement; so why would the 14th mention the due process right again? Moreoever, what is even worse is that the theory of incorporation says that the “due process” clause of the 14th amendment is what does the incorporating! It is a clearly “procedural” right yet it is ridiculously said by the Supreme Court to protect “substantive due process”. So we have the “due process” clause of the 14th Amendment being used to invent a federal right against the states to “substantive” rights, which includes the Fifth Amendment which alreayd had a right to due process! It just makes no sense whatsoever. It is clearly just a federal judiicial invention with the aim of seizing more power against the states.

The Center states “‘The Constitution does not allow the government to use eminent domain to take property and sell it to the highest bidder in a play to pocket greater tax revenue,’ said Reid Alan Cox, the Center’s Assistant General Counsel.” The Brief itself states that the Constitution “prohibits citizens from using the power of eminent domain to take their neighbors’ land for their own private benefit.” But this betrays the libertarian-centralist view. It says “the government” without distinguishing between state and federal. It wrongly states that the Constitution “prohibits” certain uses of eminent domain. This is not true. The Constitution establishes the federal government, gives it some powers, and limits these powers. It does limit the feds’ use of eminment domain, but not the states’. At most one could say that the Supreme Court’s (confused, non-legal, and unlibertarian) interpretation of the Constitution does this, but that does mean it is in the Constitution. It is not.

3:30 am on December 5, 2004
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