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Home > Issues > Kelo Decision: Right Call for the Wrong Reasons?

Kelo Decision: Right Call for the Wrong Reasons?
by Daniel Newby, August 2, 2005

"The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states… This court, therefore, has no jurisdiction of the cause, and it is dismissed." — U.S. supreme court, Barron v. Baltimore (1833)

Summary: The anger is palpable amongst property rights proponents throughout America. The U.S. Supreme Court has refused to protect citizens from having their property stolen (i.e. confiscated) for frivolous reasons. But is the indignation over this decision focused in the right direction?


1. "The Supremes" Leave this Particular Issue to States

2. Should Feds Enforce Bill of Rights over States?

3. How Could Rights be (constitutionally) Secured from States?

Conclusion: Point Your Finger in the Right Direction




1. "The Supremes" Leave this Particular Issue to States

Let's set aside the convoluted rationale used by the majority of supreme courtiers for a moment. What precisely did the Kelo v. City of New London decision do? In a nutshell, the federal government is not going to interfere much with a state's decision to confiscate, or not confiscate, private property. According to the majority opinion,

"This Court's authority, however, extends only to determining whether the City's proposed condemnations are for a ‘public use' within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek." (pages 19-20)

Ok, the opinion did go on to give all sorts of reasons as to why property confiscation is acceptable behavior under the federal constitution (example:  most forms of government theft apparently do not violate the "takings clause"). But if the states have sweeping confiscation powers, the opinions of these judges are really only important as they relate to federal confiscation schemes — which the supreme court has essentially given a wink and nod to for years.


2. Should Feds Enforce Bill of Rights over States?

Let's get straight to the point. We can all agree that the Bill of Rights was intended to curtail the power of the founders' new federal government. But was it likewise intended to curtail the powers of the various states?

Take a look at the first 12 articles recommended for the Bill of Rights, presented by James Madison to congress. The third article is today's first article — covering the restriction on congress to not meddle in the right of free speech or the press.

Now, consider James Madison's speech, wherein he proposed amendments to these twelve articles. In it, he clearly intended to add two clauses to the Bill of Rights that specifically placed restrictions on the states.  These restrictions already existed, or were already proposed, with regard to the federal government (i.e. bill of attainder, ex post facto law, freedom of speech, and trial by jury).

In fact, these two clauses appear to be the only amendments congress utterly rejected from Madison's proposals. Madison was no idiot. He recognized clearly that the Bill of Rights were restrictions on the federal government and not on the states. From Madison's speech:

"I wish also, in revising the constitution, we may throw into that section, which interdict the abuse of certain powers in the State Legislatures, some other provisions of equal, if not greater importance than those already made. The words, 'No State shall pass any bill of attainder, ex post facto law,' &c. were wise and proper restrictions in the constitution. I think there is more danger of those powers being abused by the State Governments than by the Government of the United States. The same may be said of other powers which they possess, if not controlled by the general principle, that laws are unconstitutional which infringe the rights of the community. I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no State shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every Government should be disarmed of powers which trench upon those particular rights. I know, in some of the State constitutions, the power of the Government is controlled by such a declaration; but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the State Governments are as liable to attack the invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against." [bold added]

The concept that the Bill of Rights was designed to curtail federal power was clearly understood years later. In 1833, another citizen sought redress from the supreme court against the city of Baltimore, which had apparently destroyed his property in a more roundabout fashion. Read a portion of the majority opinion in Barron v. City of Baltimore (just read the bold if you are short on time): 

"The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.

"If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions, they have imposed such restrictions on their respective [32 U.S. 243, 248] governments, as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.

"The counsel for the plaintiff in error insists, that the constitution was intended to secure the people of the several states against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their general government. It support of this argument he relies on the inhibitions contained in the tenth section of the first article. We think, that section affords a strong, if not a conclusive, argument in support of the opinion already indicated by the court. The preceding section contains restrictions which are obviously intended for the exclusive purpose of restraining the exercise of power by the departments of the general government. Some of them use language applicable only to congress; others are expressed in general terms. The third clause, for example, declares, that 'no bill of attainder or ex post facto law shall be passed.' No language can be more general; yet the demonstration is complete, that it applies solely to the government of the United States. In addition to the general arguments furnished by the instrument itself, some of which have been already suggested, the succeeding section, the avowed purpose of which is to restrain state legislation, contains in terms the very prohibition. It declares, that 'no state shall pass any bill of attainder or ex post facto law.' This provision, then, of the ninth section, however comprehensive its language, contains no restriction on state legislation.

"The ninth section having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the general government, the tenth proceeds to enumerate those which were to operate on the state legislatures. These restrictions are brought together in the same section, and are by express words applied to the states. 'No state shall enter into any treaty,' &c. Perceiving, that in a constitution framed by the people of the United States, for the government of all, no limitation of the action of government on [32 U.S. 243, 249] the people would apply to the state government, unless expressed in terms, the restrictions contained in the tenth section are in direct words so applied to the states.

"It is worthy of remark, too, that these inhibitions generally restrain state legislation on subjects intrusted to the general government, or in which the people of all the states feel an interest. A state is forbidden to enter into any treaty, alliance or confederation. If these compacts are with foreign nations, they interfere with the treaty-making power, which is conferred entirely on the general government; if with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the constitution. To grant letters of marque and reprisal, would lead directly to war; the power of declaring which is expressly given to congress. To coin money is also the exercise of a power conferred on congress. It would be tedious to recapitulate the several limitations on the powers of the states which are contained in this section. They will be found, generally, to restrain state legislation on subjects intrusted to the government of the Union, in which the citizens of all the states are interested. In these alone, were the whole people concerned. The question of their application to states is not left to construction. It is averred in positive words.

"If the original constitution, in the ninth and tenth sections of the first article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the general government, and on those of the state; if, in every inhibition intended to act on state power, words are employed, which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course, in framing the amendments, before that departure can be assumed. We search in vain for that reason.

"Had the people of the several states, or any of them, required changes in their constitutions; had they required additional safe-guards to liberty from the apprehended encroachments of their particular governments; the remedy was in their own hands, and could have been applied by themselves. A [32 U.S. 243, 250] convention could have been assembled by the discontented state, and the required improvements could have been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from two-thirds of congress, and the assent of three-fourths of their sister states, could never have occurred to any human being, as a mode of doing that which might be effected by the state itself. Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention. Had congress engaged in the extraordinary occupation of improving the constitutions of the several states, by affording the people additional protection from the exercise of power by their own governments, in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.

"But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained, that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those unvaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government-not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.

"We are of opinion, that the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use, without just compensation, is intended solely as a limitation on the exercise of power by the [32 U.S. 243, 251] government of the United States, and is not applicable to the legislation of the states. We are, therefore, of opinion, that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that state, and the constitution of the United States. This court, therefore, has no jurisdiction of the cause, and it is dismissed."

This entire decision presents a fascinating look into the minds of those who better understood the checks and balances purposely designed to curtail the explosive federal leviathan we suffer under today. It appears to have retained some limited force even after the "Civil War" — when the federal government assumed new powers in order to destroy state sovereignty and federalism. But these opinions were eroded in recent decades as the federal government grew to assume power over every aspect of our lives.

In the Kelo decision, for instance, judge Stevens is comfortable making the argument that the Fourteenth Amendment, passed after the "Civil War" (on July 9, 1868), makes the entire Bill of Rights applicable to the states (see page 1 — he simply references an 1897 supreme court decision).

Is judge Stevens correct? Did the passage of the Fourteenth Amendment make all the restrictions in the Bill of Rights suddenly apply to the states? Consider a few words from the same court in Bartkus v. Illinois, 359 U.S. 121 (1959):

"Prior cases in this Court relating to successive state and federal prosecutions have been concerned with the Fifth Amendment, and the scope of its proscription of second prosecutions by the Federal Government, not with the Fourteenth Amendment's effect on state action. We are now called upon to draw on the considerations which have guided the Court in applying the limitations of the Fourteenth Amendment on state powers. We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States.

"Evidencing the interpretation by both Congress and the States of the Fourteenth Amendment is a comparison of the constitutions of the ratifying States with the Federal [359 U.S. 121, 125] Constitution. Having regard only to the grand jury guarantee of the Fifth Amendment, the criminal jury guarantee of the Sixth Amendment, and the civil jury guarantee of the Seventh Amendment, it is apparent that if the first eight amendments were being applied verbatim to the States, ten of the thirty ratifying States would have impliedly been imposing upon themselves constitutional requirements on vital issues of state policies contrary to those present in their own constitutions. Or, to approach the matter in a different way, they would be covertly altering provisions of their own constitutions in disregard of the amendment procedures required by those constitutions. Five other States would have been undertaking procedures not in conflict with but not required by their constitutions. Thus only one-half, or fifteen, of the ratifying States had constitutions in explicit accord with these provisions of the Fifth, Sixth, and Seventh Amendments. Of these fifteen, four made alterations in their constitutions by 1875 which brought them into important conflict with one or more of these provisions of the Federal Constitution. One of the States whose constitution had not included any provision on one of the three procedures under investigation adopted a provision in 1890 which was inconsistent with the Federal Constitution. And so by 1890 only eleven of the thirty ratifying States were in explicit accord with these provisions of the first eight amendments to the Federal Constitution. Four were silent as to one or more of the provisions and fifteen were in open conflict with these same provisions. [359 U.S. 121, 126]

"Similarly imposing evidence of the understanding of the Due Process Clause is supplied by the history of the admission of the twelve States entering the Union after the ratification of the Fourteenth Amendment. In the case of each, Congress required that the State's constitution be ‘not repugnant' to the Constitution of the United States. Not one of the constitutions of the twelve States contains all three of the procedures relating to grand jury, criminal jury, and civil jury. In fact all twelve have provisions obviously different from the requirements of the Fifth, Sixth, or Seventh Amendments. And yet, in the case of each admission, either the President of the United States, or Congress, or both have found that the constitution was in conformity with the Enabling Act and the Constitution of the United States. Nor is there warrant to believe that the States in adopting constitutions with the specific purpose of complying with the requisites of admission were in fact evading the demands of the Constitution of the United States.

"Surely this compels the conclusion that Congress and the States have always believed that the Due Process Clause brought into play a basis of restrictions upon the States other than the undisclosed incorporation of the original eight amendments

"Some recent suggestions that the Constitution was in reality a deft device for establishing a centralized government are not only without factual justification but fly in the face of history. It has more accurately been shown that the men who wrote the Constitution as well as the citizens of the member States of the Confederation were fearful of the power of centralized government and sought to limit its power. Mr. Justice Brandeis has written that separation of powers was adopted in the Constitution ‘not to promote efficiency but to preclude the exercise of arbitrary power.' Time has not lessened the concern of the Founders in devising a federal system which would likewise be a safeguard against arbitrary government. [359 U.S. 121, 138] The greatest self-restraint is necessary when that federal system yields results with which a court is in little sympathy."

From these statements, one fact is evident: As the federal monster has grown, the intent of those who created it was destroyed and supplanted with a new rationale and motive.


3. How Could Rights be (constitutionally) Secured from States?

The original intent of the federal constitution was to allow sovereign states to remain that way. States surrendered only those powers specifically enumerated in the federal constitution. States, for example, continued to fund and endorse specific religions (many did so years after ratifying the federal constitution). States could even continue to subject other human beings to the injustices of slavery.

Did states have a right to do these things? Of course not. No government, majority, or person has a right to stomp on rights our Creator granted to each of us. As James Madison warned:

"There is no maxim in my opinion which is more liable to be misapplied, and which therefore needs elucidation than the current one that the interest of the majority is the political standard of right and wrong.... In fact it is only reestablishing under another name a more specious form, force as the measure of right...." — James Madison, letter to James Monroe, October 5, 1786 (see The Founders Almanac, by Matthew Spalding, The Heritage Foundation, 2002, p. 177)

The federal government, however, was powerless to interfere in state matters. Why? Because the states and people did not grant the federal government any such authority in the constitution that created it.

So, how could the people, who are the ultimate sovereigns, reign in a renegade state government? The answer was simple: They could reform or destroy it — all without federal interference.

If a state or local government was stealing property, any sovereign citizen would be within his right (and still is frankly) to defend his property by shooting the thieves. The theory goes that, so long as the conflict did not spill over to other states or involve other nations, those involved could carry on their activities without insertions from the FBI, CIA, or ATF.

In this way, the individual was the ultimate sovereign, his natural rights were pre-eminent, and he was at complete liberty to support or attack his immediate government. If an individual state was grieved, and it didn't enjoy a majority or two-thirds majority of states on its side, its only real recourse was to endure the grievance or leave the federal union (until the "Civil War"). But if the individual of a state is grieved by the state, and he did not enjoy a majority or super-majority on his side, he could endure, leave, or go directly to war against the state.

This is a frightening concept today. The thought of leaving it up to the individual to determine what his natural rights are, and when he should violently rebel to protect them, is a course of thought entirely unknown and repulsive to our current, effeminate culture.

But, like it or not, this brand of federalism once existed, and was a lot like the free market: full of risk at the state and local level. The federal constitution could perhaps be better viewed as a detailed treaty or pact between separate nations — and each nation-state was to remain a sovereign, independent entity.

Note: Some also point to Article 4, Section 4 of the federal constitution as evidence of federal power over the government structure and activities of each state: "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." However, this statement appears to mean the following: "The United States shall guarantee to every State in this Union that the federal government will remain a Republican Form of Government."


Conclusion: Point Your Finger in the Right Direction

The problem with the Kelo decision is not that states now have more power to determine whether or not they will pursue property confiscation. They had that power (and more) before and after they ratified the federal constitution. The problem is that these nine federal courtiers selectively exercise other powers over the states that they were never granted. They are enabled to do so by the federal congress, president, the not-so-sovereign state governments, and those around us who have been conditioned to accept it.

Why be angry over a few judges who rearrange the deck chairs of the sinking ship in a manner that does not suit us? Why continue to throw our hopes and resources at their corrupt, robed feet?

Instead, let us turn our anger to the fact that we lost our Republic long ago. Let us realize that it has been many years since we possessed a limited federal government, sovereign states, and individuals with ultimate power and authority.

Were the sovereign citizens of Connecticut to rightfully stand up and kill those who came to steal their property under the pretense of state or local government, these robed federal tyrants and their cohorts in congress would quickly send in armies of soldiers and bureaucrats to destroy them. That sad fact is far more worthy of our indignation and attention.



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