Strengthening Constitutional Self-Government

No Left Turns

Kelo vs. New London

This is George Will on yesterday’s Supreme Court decision
that expands the meaning of eminent domain. The Court has opened wide a gate that should remain shut, or nearly shut. This is an awful decision, as John Moser immediately pointed out (also see the Comments section). No doubt NLT will have more to say about this as time goes on. The only thing I want to note here is only the possible good political effect this case might have, especially given that Bush will the chance to place new people on the Court. Two folks (not academics) stopped me this morning in the market to say how angry they were about this decision. Private property has a very meaningful and concrete meaning for citizens, and they are not amused that one private party can now take the property of another. There are many ways the GOP will be able to use this decision, and placing better people on the Court is only one of them. And they had better take advantage of it. This will have consequences.

Discussions - 13 Comments

The conclusion of George Will’s article gives an important caution for conservatives in the debate over the role and nature of the judicial branch. Will cautions those "conservatives who dogmatically preach a populist creed of deference to majoritarianism." Issues such as gay marriage are argued through this lens. The overwhelming majority of Americans are against it, thus the Courts should not act in contradiction to that will.

Such an argument, made in the progressive mode, allows for a government without limits. Under such reasoning, we have a government whose powers go as far as a majority of the people wish them to go. This could most certainly, given the assumption, be extended to infringements on property rights as long as the majority consented. Every generation defines the role of government for themselves, thus the fact that such attacks on property rights do not hold sway now does not mean such will be the case down the road.

Therefore, the language of certain conservatives in regard to the Judicial branch could be similarly damaging to the rights of Americans as that of liberals.

Instead, what Will hints at yet fails to fully discuss, is the need for a government with definite limits. Thus his comment concerning the "judiciary’s indispensable role in limiting government." What is really needed is a return to the Founding concept of natural rights and the government’s sole role as the protector of those rights. The role of government thus understood could protect property as well as other rights in a way that the other conceptions cannot.

Over at The Remedy, I have blogged on just the kind of political effect that Peter mentions. My hope is that this decision, spurring the kind of backlash that Peter describes, will be a catalyst for property-rights proponents to push sympathetic state legislatures to reign in the eminent domain powers of localities. There is already some precedent for this, and perhaps the Kelo decision will cause more of it. We’ll see.

While I am sympathetic to this post, I am pretty sure we are whistling past the graveyard. Roe vs Wade has been stirring a nearly 30 year backlash, and like a law of the Medes and Persians, it remains unchanged. The Supreme Court’s primary interest seems to be maintaining the power and position of the Supreme Court. They have decided stark reversals of prior decisions, no matter how antithetical those imperial decisions may be to republican principles, might negatively effect the power position of the court in American political life. So there will not be any reversals. That means Roe, Kelo, and a score of other decisons are safe. It also means conservative outrage will be channeled into electing more sham conservatives like we have in the White House, the Senate, the congress, the Ohio governor’s mansion, etc etc. These will in turn appoint more cringing compromisers and closet statists - Souter, Gonzalez, etc. We in turn, will all blog together about the next outrage, vowing that one day they will go to far and then we will really sort things out.

A great man, John Ashbrook, once lamented, "Why is it that when we send our guys to Washington, they stop being our guys?"

Let us hope Shrub does the right thing here.

Remember, of the 9 robes on the SCOTUS, only 2 are Democrat appointees (Breyer, RBG - both FOB’s).

Three Republican appointees -- Stevens (Nixon), Kennedy (Reagan), and Souter (Bush1) -- sided with the majority.

Will is absolutely correct--the problem isn’t with "activist" judges, it’s with judges who don’t follow the Constitution. When politicians overstep their bounds, you’re darn right that I want the courts to stop them. It’s worth recalling that one of the most distinguished opponents of "judicial activism" was Franklin D. Roosevelt, who tried to pack the Supreme Court with loyalists after the Court struck down several key parts of the New Deal. Conservatives in recent years have too often sounded like FDR in 1937.

Mr. Moser:

I am curious as to your opinion about how the Supreme Court did not follow the federal Constitution in Kelo. Even if we construe the 5th amendment as narrowly as possible, how does it apply to the states? I assume you would use the 14th amendment, which states that citizens cannot be deprived of life, liberty, or property without due process. If we examine due process in other portions of the Constitution, it is concerned with procedure, which means that states would have to have hearings, etc. in e.d. cases (the court affirmed the necessity of hearings for e.d. in Loretto). Since this would not work, you would need to use substantive due process, the same area of constitutional law that gave us Griswold, Roe, and Lawrence, among others. I cannot think of anything more out of tune with the Constitution than this, 5 justices decide what rights are given protection.

Conservatives often complain that the Supreme Court should not use the constitution as cover to enact their policy preferences, or do what they think is "just". The constitution allows the government to pursue actions that are distasteful, it is up to politics to ensure our government is reasonable. Conservatives also complain that the Court has consistently restricted the powers of the States. Liberals can surely charge conservatives with hypocracy if they make a big fuss over this case.

No, Mr. Sparks, you are wrong here. Conservatives have been very consistent in all of this...we are against courts that ignore the clear meaning of the Constitution and use 1) international law, or 2) their own sense of right and wrong as a substitute for solid jurisprudence and good-faith interpretation.

Public takings are a part of our Federal Constitution...from the beginning it was meant to curb State and local governments from depriving American citizens of their property rights for corrupt or illegitimate purposes (robbing Peter to pay Paul, for instance). As conservatives we get upset when courts deprive States and localities of rights that they have traditional held under the Constitution...and takings ain’t one of them.


I notice you offer no textual support for your position. When the Bill of Rights was originally enacted it applied to the federal government; this makes sense since the Constitution formed the federal government. The Bill of Rights did not apply to the States until the Supreme Court used the 14th amendment to "incorporate" the protections the Bill of Rights offered. This is why State governments are not allowed endorse religion, even though the 1st amendment states "Congress shall not", etc. Until modern 14th amendment jurisprudence came into play, states were free to do what they wished since they were soverigns. We had a war about the matter.

I dislike using the 14th amendment to apply the Bill of Rights to the States. It seems very likely that the 14th amendment’s concern was exclusively with former slaves. The amendment was written to ensure that State governments did not treat former slaves in an arbitrary way, hence the talk about "due process" and "equal protection". If someone can prove to me that the 14th amendment was written to limit State powers via the Bill of Rights then we can start to discuss how the Supreme Court got the takings clause of the 5th amendment wrong, until then certain conservatives are being inconsistent at best, disingenious at worst.

I am not alone at my view. Certain bloggers at NRO’s the Cornor, and the Bench Memo section agree with me.

Well, I realize that there is a controversy on whether the Bill of Rights originally pertained to the States. Personally, I’ve always thought they were intended to because (1) the provisions usually cite "the people" as protected, and only occasionally refer to "Congress," and (2) at least the 6th Amendment clearly constrains State judiciaries:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

So...since there is some evidence that the Bill of Rights was in part at least directed toward States, my argument in comment #7 is plausible. Regardless, I doubt more than a tiny handful of contemporary Americans view the Bill of Rights as aimed only at the Federal government, nor do I think the Supreme Court holds that view. Therfore, they have done violence to our rights under the law, and I have no doubt whatsoever that the Founders who view this as an abomination.


Your last post is pretty interesting. You base jurisprudence on two pilars: 1. Whatever the people think the law is the law should be; you imply that since most contemporary people believe the Bill of Rights should apply to the States, then it should. This statement is correct if you mean the people who wrote the Bill of Rights, or the people who ratified the amendments, but it seems pretty unconservative to claim the law’s meaning ought to change as contemporary people come to view it differently (sounds like a living constitution), and 2. Because the Supreme Court has used the 14th amendment to incorporate the Bill of Rights it ought to continue doing so. This is a prudential argument, the law should not shift about radically because people base expectations on the law, but as a matter of legal right it seems dubious to claim that something that should not exist should continue to exist because it once existed.

I am aware that people have property rights transcendent of government, and that government must respect those rights. However, people give up some property rights when they form a government per Locke (and I suppose our Declaration, although it substitutes happiness for property). The people gave up certain property rights when they ratified the federal constitution, so people cannot have property rights that do not exist under the constitution unless those rights are found in the state constitutions. E.D. is best solved at the state level, not by inventing new constitutional absolutes with no foundation in the text. If the people are unhappy with their current property rights they may always amend the constitution, or if things become too terrible, revolt and form a new government.

The people gave up certain property rights when they ratified the federal constitution, so people cannot have property rights that do not exist under the constitution unless those rights are found in the state constitutions.

EEWWWW, what a liberal thing to say! Have you never read the 9th Amendment?

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Do State constitutions actually enumerate all the property rights people can have? I think not. Indeed, I think all the State constitutions make the same assumption...that if it is not directly addressed then the presumption is that the right exists.

I do see your point about State’s rights (although to have someone who is clearly to the Left of John Calhoun suggest that is quite humorous), but we do have a NATION here. Courts have looked at the Bill of Rights as the bedrock statements of AMERICANS citizenship rights -- how else to explain rulings about prayer in the classroom, abortion, affirmative action, and so on? To suggest that the Supreme Court can cherry-pick which amendments apply to all Americans and which don’t seems absurd to me -- the makings on an imperial court quickly losing touch with the Founders’ original intent as well as the values of the nation TODAY. That was what I was saying.


The 9th amendment is the last refuge for people who do not have a constitutional leg to stand on. I do not believe it has been used since a concurrence in Griswold (sometime in the 60s) because it is so vague that it is silly to try and claim it is a valid basis for a legal decision, and not a personal whim. When courts wish to invent new rights they use the 14th amendment, "due process" sounds more substantial than the 9th amendment.

How could any court plausibly determine what unenumerated constitutional rights deserve an absolute constitutional protection, and why should citizens and governments accept the Court’s authority when they define a new right?

I have a feeling you would loudly complain if the Court were to say that the right to marry is protected (they already did in the 60s) and extend this protection to homosexual couples. You would claim the right is not found in the constitution, the Court invented new rights, usurped the role of the legislature and people in determining what to do, etc. How is your 9th amendment solution to Kelo any different than this?

I agree the Court should not determine which rights States are required to observe and which they are not (oddly enough, trial by jury is not one of them). I would prefer is the Court did not use the 14th amendment to expand the sphere of the Bill of Rights, and then let the people of each state decide which portions of the Bill of Rights should be amendment into their own constitutions.

Well, perhaps all these slick lawyers find the 9th Amendment just too inconvenient for the construction of the all-encompassing State. Regardless, it’s in the Constitution and whether anyone chooses to use it isn’t my affair. The idea that it is just too vague is nonsense, of course. Look how they have stretched phrases like "militia" and "cruel and unusual punishment." Lawyers and judges LOVE ambiguity.

Creating homsexual marriage would indeed be creating a complete new right...nothing in history compares to it. Marriage, on the other hand, was a right for select segments of the population (determined by age, gender, and prior marital status) for thousands of years before the Constitution. This was true across all civilizations. It is precisely this kind of natural right that the 9th Amendment was meant to protect...rights that were traditional held to exist by "the people." Your argument is a non-starter, I’m afraid.

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