"[T]here are, at bottom, basically two ways to order social affairs, Coercively, through the mechanisms of the state -- what we can call political society. And voluntarily, through the private interaction of individuals and associations -- what we can call civil society. ... In a civil society, you make the decision. In a political society, someone else does. ... Civil society is based on reason, eloquence, and persuasion, which is to say voluntarism. Political society, on the other hand, is based on force." ~ Ed Crane
Kelo v. New London: Undercutting the Rule of Law
The Kelo v. New London decision, handed down by the Supreme Court on June 23rd, has struck a chord among Americans. Basically, a majority of the Supreme Court said that local government officials can take away your home to give it to a private developer, on the tenuous premise that the increased tax revenue from a shopping mall or hotel on your former homestead is a 'public use' and thus satisfies the requirements of the 5th Amendment to the Constitution. (1)
Think about that. No longer can government take your land away only for a function that only government can provide, such as a police station, fire station, or bridge. All it requires is more tax revenue than the local property tax you currently pay.
While abstract concepts such as life, liberty, and property have a hard time competing on the TV with the Michael Jackson trial or Natalee Holloway disappearing in Aruba , most everyone can feel the punch-in-the-gut understanding that the mortgage payment is now, in practical terms, merely a rent payment. Except, rental tenants have a lease stating the terms of their eviction; now, you merely live in your house at the pleasure of the local government.
The ripple effect has caused Internet discussions I never thought possible. Even the most civil and level-headed of the gun chat boards have threads lasting over 18 pages with nearly unanimous consensus that what Claire Wolfe calls 'the awkward stage' (2) has just lurched much closer to an end.
So, Americans feel upset; but why? Well, most of us have an innate understanding of how the interaction between law and society generally works, but we are not formally taught the underpinnings of those interactions. Those underpinnings are called The Rule of Law. This term is widely misused by politicians to mean 'we make the rules, we call them laws, and we will enforce them on your ass in a heartbeat.' However, The Rule of Law is a formal concept that bears explaining, particularly in the context of the Kelo decision.
Charlotte Twight in her excellent book Dependent on D.C. and Bruno Leoni in Freedom and The Law each discuss the fundamental characteristics of The Rule of Law which, as classically formulated, has the following five tenets: 1. Known general rules of law, equally applicable to all (meaning applicable to both citizens AND government). 2. Certainty or constancy of the law, enabling people to plan their lives and activities with an understanding of the law's predictable impact. 3. Absence of wholly arbitrary or discretionary government power over the lives and acts of individuals. 4. A broad sphere of individual freedom protected from other individuals and from government. 5. Independent review of the law's application both to individuals and to actions by government officials. Looking at these, we can see how the Kelo decision strikes the rule of law:
1. We thought we knew what 'public use' meant, but now every American knows how the Supremes can distort plain meaning to fit socialist goals.
2. Like President Clinton, who fervently believed in concepts right up to the moment he changed his mind, your investment in your home is still safe and certain, right up to the moment when the local government hears the irresistible siren's call of higher tax revenue from private developers and decides to give you the boot.
3. The decision unleashes discretionary government activity (witness the majority's deferral to local government officials).
4. Your freedom to live where and as you please is destroyed.
5. The independent review of the law's application has failed because the Court has turned to the dark side of Deferral to Government Authorities, even when we and they both KNOW that giving private property to another private individual is NOT what the public use part of the 5th Amendment intended.
So, why is the Rule of Law important? Allow me to demonstrate the path of social disorder that follows as the Rule of Law is diminished:
1. As you destabilize some rules, you will affect other rules as the destabilization disrupts the natural self-ordering of human interaction.
2. As rules fray, or are not observed by government, the people cease to observe the rules themselves.
3. As rules fray through nonobservance by the government and/or the people, the people cease to feel able to count on the rules.
4. As people cease to count on the rules to enforce private behavior, they cease feeling able to count on each other, and they feel mistrust.
5. Mistrust of individuals leads to mistrust of institutions and government, and the people cease to hold government accountable.
6. As standards fall, corruption infects government. Some of the ways of destabilizing the Rule of Law are infringements on liberty in personal affairs, in trade, etc; redistribution of wealth to buy votes of a particular constituency or constituencies; expansion of government power beyond that explicitly authorized; and the costs of compliance with norms and rules EXCEED the costs of noncompliance.
But, what is the number one means of destabilization? Lack of observation of property rights. You don't have to be a property law expert to understand the fear and uncertainty generated in society at large if there are no guarantees that what you purchase is yours to keep. For an extreme example, just look at the turmoil in Zimbabwe that Mugabe has unleashed by dispossessing the landowners.
The Founders who insisted upon the Bill of Rights were motivated to preserve the classic rights to life, liberty, and property, mainly to prevent the abuses that sparked the American Revolution. So far, we've seen the 1st Amendment destabilized in the name of Incumbent Protection, aka 'Campaign Finance Reform.' We've seen the 2d Amendment destabilized for years, but we have the satisfaction of seeing the expiration of the ridiculous War on Cosmetic Gun Accoutrements, aka 'The Assault Weapons Ban.' We've seen the 4th Amendment destabilized in the name of Prohibition II, aka 'The War on Drugs.'
Now we see the right to property severely weakened. Ask yourself how many of those 'ways to destabilize rules and order' are met in the early 21st Century American legal structure. The ghost I hear mentioned on the Internet chat boards is not that of Thomas Jefferson, but of Carl Drega. (3)
The Supreme Court once again mangles the Constitution they are sworn to uphold. And to imagine that Connecticut , where New London is located, styles itself as 'The Constitution State.'
(1) 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.' (emphasis added)
(2) " America is at that awkward stage. It's too late to work within the system, but too early to shoot the bastards." Claire Wolfe, 101 Things to Do 'Til the Revolution