I've had many posts already on the Kelo case: On the Mises blog (Woops, They Did It Again (Bad Supreme Court! Bad! Bad!)) and the Liberty and Power blog (First Raich, now This (Kelo)). I argue that the Justices' reasoning is confused, but the right decision was reached: to let the Connecticut taking practice stand. Because the 5th Amendment was never meant to apply to the states.
And in this post on the Palmer Periscope (Palmer on States and the Feds--Kelo), I critique Tom Palmer's comments on this case and related matters.
1 comment:
I am of the opinion that the court reached the wrong decision as the constitution guarantees each state a republican form of government. I consider the term republican, in the context of the constitution, to refer to a Lockean sort of government. Therefore, if one assumes that republican implies a government with the consent of the governed, one must therefore acknowledge that, particularly based on the philosophy of Locke, a republican, in the sense previously noted, form of government, the ruling authority may not take property without the owner's consent. (The issue of taxation is of course exempted here, as it is part of the implicit contract establishing the governing authority. I agree with Spooner that such a contract is invalid for all who were not willing parties in the original contract, but believe, also like Spooner, that the Constitution, although invalid, may be used as a tool to fight for liberty.)
I of course recognize the danger of such interpretations, but feel that on two grounds they may be accepted. First, such reasoning does not directly flaunt the Constitution. Secondly, and more importantly, unlike the loose interpretation of the commerce or necessary and proper clause, interpreting the guarantee of republican government to entail government of a Lockean nature cannot authorize any more usurpations of natural rights by the government and can only lessen such usurpations as currently exist.
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