I’ve had a few thoughts on the Kelo case, federalism and the Bill of Rights and judges wearing robes.
The Bill of Rights was, of course, originally intended as a check on federal power. As a proponent of federalism, I’m generally comfortable with giving state legislatures broad latitude in experimenting with a wide range of policies. That said, I’m also a believer in freedom and I am a federalist not a confederationist. A meaningful, freedom enhancing central government will sometimes act to check state power. Applying the Bill of Rights to the States is such a long settled matter of law that even Justices Scalia, Rehnquist and Thomas generally accept it as a given. I don’t have a problem with that. The Bill of Rights are a finite set of specific rules that I would call quintessentially American and to apply them as written to the States can only enhance American federalism in achieving American ends. But if they are to be applied to the States they should all be applied to the States including the Second Amendment and the property rights provisions. They should also be applied as written. To simply say that we are going to apply the Bill of Rights plus the nebulous sphere of real or imagined rights that spring from them gives too wide latitude to federal power, as we’ve seen in many cases.
There is another problem with the Kelo ruling from a federalist perspective. Instead of saying, “We can’t rule on this as this Amendment doesn’t apply to the States,” the Court ruled that the Amendment did apply but that achieving higher tax revenue or economic growth is a “public use”. They then went on to say that the States could adopt a tougher standard. That’s wonderful and certainly seems in tune with federalism on its face. The problem is that state constitutional language on rights is often modeled, in some cases copied directly, from the federal language. So one would expect a state court facing a state constitution which requires a public use test for eminent domain to refer to the thought of their judicial superiors and likely arrive at a similar conclusion. While paying lip service to the idea of tougher state standards, the ruling that anything which by any stretch of the imagination is a “public good” is also a “public use” actually guts state protections as thoroughly as it guts the federal one.
Solution to the eminent domain issue? Attack it from all sides. The trial balloon by James Sensenbrenner to prohibit use of CDBG money for private development using eminent domain would be a great first step at the federal level and needs to be put into a bill or budget amendment asap. The various state proposals should all move forward.
Solution to the bigger problem? I don’t know that I have one, but part of the solution has to be injecting some realism into the thought of federal judges, reminding them that they are citizens not sovereigns. They need to be reminded of a document much older even than the United States, but fundamental to our theories of government, the Magna Carta. The proposal to remind InJustice Souter that his house is subject to the same rules as everyone else is precisely that. Perhaps it’s also time to require them to wear suits like other government officials instead of priestly robes, to remind them that they are men and not gods.