Jumping To Conclusions

No man's life, liberty or property is safe while the legislature is in session.

One can hardly say that the Kelo v. New London decision was unexpected, but it's still horribly depressing. I don't have time to write as much as I'd like about the decision, so I'll just do a few random thoughts.

1. Quoting Justice Stevens' majority opinion: "Promoting economic development is a traditional and long accepted function of government." He just left out the word "Soviet" before government. Wasn't it liberals who used to find the statement, "What's good for General Motors is good for America" to be odious? Now they've enshrined it as official Constitutional policy.
   
2. We currently have a Supreme Court that believes that something which is neither interstate nor commerce is somehow governed by a power over interstate commerce, and a private company's private profit is a public use.
   
3. What the heck is up with Anthony Kennedy? Just a year ago, Randy Barnett was celebrating him as a libertarian justice for his Lawrence v. Texas decision; now he gives us Raich and Kelo? Yes, he attempted to limit the holding of Kelo with his concurrence, but it was a pretty perfunctory effort, and it didn't keep him from signing on to Stevens' opinion. Is he trying to court Democratic senators in an effort to campaign for the Chief Justice job after Rehnquist retires?
   
4. Speaking of Kennedy's defection, if you had told me that one of the conservative five was going to defect in both Raich and Kelo, I would have guessed O'Connor; instead, she wrote stirring, principled dissents. No six part balancing test to decide when government can seize private property for the benefit of developers, but a simple declarative statement: "Are economic development takings constitutional? I would hold that they are not."
   
5. What's particularly horrible about Raich and Kelo is how broad they are. They might have been limited to their specifcs, but instead we got Raich fully endorsing Wickard, holding that there are no limits to federal power under the Commerce Clause. And we got Kelo, holding that the "private use" limitation in the Takings Clause doesn't exist. There is, for all practical purposes, nothing which isn't interstate commerce, and nothing which isn't a public use.
   
6. The good news is that this decision, unlike the awful Raich one, was only 5-4 The bad news is that the Justice most likely to retire is Chief Justice Rehnquist (and Sandra Day O'Connor?), who was on the right side of both decisions, rather than any of the liberals -- though we can always hold out hope on the 85-year old Stevens.
   
7. Liberals often deny that they support big government for the sake of big government. They insist they support big government only for the good (in their view) things it can accomplish. Even if that could be said to be true, it's a distinction without a difference. They support big government unconditionally, merely in the hope that sometimes it will do those good things.
   

Anyway, as I said, I'm depressed right now. With the exception of the confirmation of Janice Rogers Brown to the federal bench, this has not been a good year for libertarians. Social Security privatization is stalled, federalism is deader than Terri Schiavo, the drug war remains in full effect, and private property exists only at the sufferance of local government, bought and paid for by real estate developers and other big businesses.