Is Masturbation Relevant?
Kelo and its Progeny

The key in Kelo

There’s one sentence that really does all the damage in Kelo, but so far I haven’t seen people focus on it.

Many times in the past, I have pointed out that the crisis in constitutional law lies in the fact that the judges today do not understand, and/or care about political philosophy. Since the 1930s, it has been a major preoccupation of judges to avoid considerations of political philosophy, and congratulate themselves on doing so. Take Robert Bork, for instance, who absurdly insists that it is not the job of a Justice to do justice. And yet, despite all the talk of judicial deference, judges simply cannot avoid doing political philosophy; it is an inherent part of what they do.

That’s clear from such phrases as “rationally related to a legitimate state interest” or “narrowly tailored to advance a compelling government interest.” What exactly is a legitimate state interest, and how does it differ from a compelling one? The courts have never told us. On the contrary, the Supreme Court of the United States declared twenty years ago that “[o]ur cases have not elaborated on the standards for determining what constitutes a ‘legitimate state interest.’” Nollan v. California Coastal Com’n, 483 U.S. 825, 834 (1987). While grateful for the candor, I submit we should be shocked that, two hundred years after the Declaration of Independence, with the Revolution, the Civil War, World War II, the Civil Rights Struggle, all in our experience, our intellectual leaders don’t know what a legitimate state interest is.

The fact is, they are terrified of that consideration because it would involve taking seriously the fact that government has no “legitimate interest” in taking the property of one person and giving it to another person. To take the property of A and give it to B is simply illegitimate—a violation of the very purposes of government. But, of course, it is the government’s primary occupation today. For the past seventy years, the Supreme Court has simply turned its back on government taking things from people who earn them, and giving them to people who do not, and the result has been the erection of a massive, unconstitutional, illegitimate, regulatory welfare state. For the Supreme Court now to return to taking this issue seriously would involve not only admitting that they were wrong (something none of us likes to do) but seriously challenging the legitimacy of the redistributionary scheme that passes for politics today. As Gary Lawson has pointed out, this would be little short of a revolution. Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231 (1994).

So here’s the key to Kelo:

Promoting economic development is a traditional and long accepted function of government.

Kelo v. City of New London, 2005 WL 1469529, at *8. Justice Stevens provides no explanation of why “promoting economic development” is a legitimate state interest. He simply asserts that it is “traditional and long accepted.” Yet many things are traditional and long accepted that are not constitutional. Segregation, for example. Stevens goes on to say that there is “no principled way of distinguishing economic development from the other public purposes that we have recognized,” and to support this assertion cites Berman and other cases which stand for the same unsupported proposition, so that he is simply restating that the Court has “long accepted” government taking property from people who earn it and giving it to people who do not. Long accepted—by whom? It certainly was not accepted by those who drafted and ratified the Constitution, and it is the Constitution—not whatever violations of it that people have “long accepted”—that the Court ought to regard in its deliberations. As Frederick Douglass said, “nothing is settled that is not right.”