Welcome to Liberrants, a blog dedicated to editorials, discussions, and studies of all things libertarian. Don't let the title mislead you; it's merely my attempt to be creative in describing myself as a "hopeful curmudgeon" who embraces the goal of the free, peaceful, economically vibrant society envisioned by America's founding fathers. Jump in! Contribute! Enjoy!

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Location: Tucson, Arizona, United States

A critically thinking curmudgeon whose goal, in addition to creatively venting about the imperfect world in which we live, is to induce critical thinking in others. The ultimate goal is to help bring about a peaceful world in which we can all live in freedom.

Friday, July 01, 2005

The Supreme Court, the Constitution, and the Rights of the Individual

It is not an exercise in hyperbole to refer to the Supreme Court as a dysfunctional wreck. Anyone of libertarian bent no doubt agrees with this given the court’s blatant tendency, especially over the last four or five decades, to decide cases by fiat of opinion rather than on a substantive interpretation of the Constitution. The controversial decision last week in the case of Kelo vs. New London , in which the high court upheld the taking by the city of New London, Connecticut of residential property through eminent domain for the purpose of reselling said property to a commercial developer, is just the latest example of the majority’s preference for preserving the tyranny of the State and its corporate enablers at the expense of the rights of the individual citizen.

While I originally had intended to join the chorus of justifiable outrage and thoroughly blast this decision, I have decided, upon careful reflection, that I am of basically two minds on the subject of the high court and its decisions. On the one hand, I submit that the decision rendered in Kelo represents the apex of misconduct and that any justice who shows such open contempt for the principles behind the document they have taken an oath to uphold deserves impeachment and removal from the bench. On the other hand, I believe that perhaps the majority’s interpretation of the Constitution (or at the very least, the framers’ intent) may be absolutely correct and that the Constitution is less of a check on the State’s power than a guideline for allocating it, often at the expense of the rights of the individual.

Using incredibly murky legal logic, the five-justice majority opined in Kelo to the effect that it is the right of each state and local government to determine whether or not property takings under eminent domain intended for transfer to private (i.e., non-governmental) parties are legitimately for “public” use and thus constitutionally sound. For anyone wishing to read it, the full text of the majority’s opinion in Kelo is available here. It is also very telling that the majority made the specious claim that government has an inherent stake in fostering the economic well-being of the community (apparently someone forgot to mention this to the framers of the Constitution), and that this is best done at government’s lowest levels where the most impact can be felt (for better or worse, no doubt).

On the other hand, this opinion seems to clearly contradict those rendered in Granholm vs. Heald, one of three cases challenging states’ practice of banning their citizens from making direct retail purchases of wine from out-of-state producers. Here the majority ruled that the state ban constituted illegal restraint of trade under the terms of the much-abused interstate commerce clause. For some reason the justices did not believe in this case that the states had the best interests of their citizens in mind by regulating from whom they could or could not purchase fortified fruit beverages at the best price the market would bear. One strains to see consistency in such a ruling when juxtaposed with similar past rulings on interstate commerce.

While libertarians most certainly should applaud the merits of the decision reached in Granholm with the same fervor with which they should denounce those of the decision reached in Kelo, the issue of the court’s conduct is a subject warranting far more complex and careful discussion. Stephen Kinsella argues, for example, that libertarians should take issue with Kelo not because of the decision rendered, but because the high court had no business hearing it in the first place, let alone rendering a decision. Libertarians, he says, cannot have it both ways where the Supreme Court is concerned; that is, we cannot cheer the court when it renders a verdict we approve of in a particular case if in rendering said verdict the court oversteps its Constitutional authority. In this case, Kinsella argues, it is disingenuous of libertarians to take issue with the majority’s deference to the state courts when that is what we constantly preach should be the norm anyway. While I do not entirely agree with Kinsella’s reasoning (he also makes his point in a rather combative and condescending manner that demonstrates why lawyers enjoy a popularity rating on a par with that of child molesters and IRS employees), he is correct in stating that if we are to remain philosophically credible, we must remain consistent. Lew Rockwell makes a similar argument in the case of Granholm and its relatives. The point is that two wrongs do not make a right and that if the court exceeds the boundaries of its jurisdiction by rendering a decision on something that is by its own admission not a matter of federal jurisdiction at all, it cannot credibly render judgment on anything without calling its judicial integrity into question.

One might say of any of the decisions in question (as I would), “But the verdict is still just ( or unjust) despite the legal logic behind it.” In response to this I would restate what many libertarians (most prominently Murray Rothbard) have stated, which is that the United States Constitution, while most definitely the greatest document of its kind ever produced, is still a deeply flawed document and that the intentions of the Founding Fathers were less libertarian than we like to assume. They were, after all, setting up the framework for a government, a state, with all of that institution’s inherent evils, no matter how lofty and benevolent their intentions. No state, after all, can survive as all-powerful if it defers to the individuals under its rule.

This is perhaps what we should bear in mind when we analyze any Supreme Court decision or any newly enacted law; the State is acting in its own best interest, which considers the rights of the individual only to the extent that they do not interfere with the goals of the State itself. As Kinsella points out, the Kelo decision illustrates this perfectly. While the legal reasoning of the majority in deciding to defer eminent domain decisions to the state and local governments is laudable from the perspective of anyone who adheres to the doctrine of federalism, the resulting decision –upholding the right of the State (i.e., government at any level) to confiscate property against the will of its rightful owner-- is a travesty that has no place in what any of us would envision as a “free” society. In other words, the mechanisms of the State, no matter how well they might work for good under most circumstances, are still a highly destructive mechanism when seen as an integrated whole. As the old expression goes, “what the government can give, the government can take away” (the flawed notion of government “giving” rights notwithstanding).

To sum it up, look at anything the Supreme Court says with extreme skepticism, just as you would look at any other organ of any level of the State. Better yet, ignore or resist any decision it makes that is not consistent with the principles of liberty. Our goal as libertarians is to strive for a society in which the State plays as non-existent a role as possible and in which voluntary associations of individuals work together to ensure the preservation of all of the individual’s rights, including those of private property. Our nation’s founders, while certainly taking things a giant step in the right direction, clearly did not go far enough in safeguarding the rights of the individual over those of the State. The United States Supreme Court, as an organ of the imperfect State they founded, is clearly not going to undertake the necessary defense of the individual so vital to any free society. To entrust them with doing so is both foolish and pointless.