The Forgotten Constitution
June 23, 2005
Two shell games converged in the Supreme Court's Kelo decision: the hoax of sovereign immunity, and the dormant police power. Both threaten to make a mockery of the Bill of Rights and of the liberties we enjoy as Americans.
Kelo holds that a municipality may use its eminent domain power to seize property for private development. Who gave the sovereign the power to take our homes?
Certainly not the founders. We cannot even be required to quarter soldiers in our homes. Warrants are necessary to enter our homes. We are secure in our persons and papers ... Sort of.
What's sovereign immunity have to do with it?
One of the greatest villains in American law is William Blackstone. His Commentaries were the the mother's milk of colonial legal education. Smuggled in with the work was a medieval hold over, sovereign immunity. You know the maxim: What pleases the prince has the force of law.
Our courts have given shape to this doctrine, making government unaccountable to us in many ways.
What of the dormant police power?
The best and most profound constitutional theorizing is typically done at the federal level, interpreting the meaning of a government of limited powers. Where's that leave the states? With seemingly unlimited power. We say of the federal power that it is limited; the police power, by contrast, is assumed to be unlimited. Why? The common law's secret affair with Blackstone's succubus, sovereign immunity.
Kelo is bad, terrifying law, the sort of law over which a person should think incendiary thoughts. We revolted against Britain over far less.