A Stitch in Haste

The House of Representatives has passed, by a 376-38 margin, a bill preventing the use of federal funds to subsidize private-for-private eminent domain takings by state and local governments. The bill is a direct response to and denunciation of the recent Supreme Court eminent domain case, Kelo v. New London, No. 04-108 (2005), which rendered the Fifth Amendment's "public use" requirement a nullity.

The legislation had actually been introduced first in the Senate, although it has yet to vote on its version of the bill. I blogged about the issue at that time; see also this post.

While this legislation is certainly better than no legislation, I still say Congress is actually being a bit a cowardly by threatening to cut off so little federal funding.

If Congress truly wants to preserve the "public use" requirement of the Fifth Amendment's takings clause, then why not threaten to withhold all federal money to a state, not just economic development funds, unless that state passed legislation banning private-for-private eminent domain? If the issue is so important, and Kelo was so wrongly decided, then why not pass a truly compelling bill?

After all, isn't that what the federal government is doing (via the Solomon Amendment, which threatens denial of all federal money to an entire academic institution if even one unit, such as its law school, tries to exercise self-autonomy and academic freedom) to colleges and universities that dare to protest the military's "Don't Ask, Don't Tell" anti-gay policy?

The federal government has never been shy about using -- and abusing -- its spending power to force people, institutions and the states to do its bidding. So why hold back now?

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Meanwhile, regarding the "Kelo backlash," it's actually somewhat disappointing to see libertarians celebrate the various "anti-Kelo" state laws that have been enacted or proposed, but more as as a "victory for federalism" than a victory for property rights. An anti-Kelo law passed in New York, or Massachusetts, or Hawaii, will not save Suzette Kelo's home in Connecticut. In that sense, there is nothing to celebrate.

This worship of the false god of federalism is no different than people who support the idea that anti-gay bigotry is a perfectly legitimate subject for constitutionalization via ballot initiatives.

"Federalism" is a strictly neutral concept (or, if you prefer, a two-edged sword) that deserves no special respect from libertarians. The fact that some states choose to assign the words "public use" their plain and obvious meaning while other states (not to mention the Supreme Court) do not merely means that some people's constitutional rights are being respected while others' are being trampled. That is never something to celebrate, "federalism" be damned.