Blogs > Liberty and Power > Thank you, Justice Thomas

Jun 30, 2005 12:00 pm


Thank you, Justice Thomas



I've written three articles on the Kelo decision but have not managed to work in this full quotation from Justice Clarence Thomas's dissent:
So-called"urban renewal" programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. (Emphasis added.)

Aside from the accurate classical-liberal class analysis, note two things. Thomas questions eminent domain per se (it's"bad enough"). And he debunks the very possibility of just compensation. Why does subjective value preclude just compensation? Because the only test of the justice of a given level of compensation is the owner's voluntary acceptance, which is missing from contested eminent domain. In other words, what makes a transaction just and legitimate is not compensation but consent.
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M.D. Fulwiler - 7/4/2005

The 3 justices in the Kelo minority all did not feel that the takings in this case was for a legitimate public use. Thomas, however, also used his dissent to also point out the bad effect of takings on blacks (true, not opinion) and the fact that "just compensation" is a lot of baloney, despite what the Constitution says (again, truth not opinion). Frankly, I'm delighted that a Supreme Court justice recognizes parts of the U.S. Constitution as not very libertarian crap.


David Timothy Beito - 7/2/2005

Thomas isn't perfect by any means but at least he was in the right side in the Marijuana case.


John Arthur Shaffer - 7/2/2005

The fourth amendment prohibits unreasonable search and seizure. When the police raided a private home and arrested the owner(s) for sodomy couldn't this easily be construed as unreasonable? Wouldn't 99% of the public view it as such?

I just don't understand why states right libertarians get so hot to trot on this case and seem quite willing to defer to state government actions that are just as destructive to individual liberties.

While I disagree that this was a public use and would prefer a much stronger prohibition on takings, it is clear from the record that the state court adjudicated this matter and according to the laws of Connecticut it was ok. Thomas saw a clear constitutional problem with this and not with Lawrence. Some would say it is obviously different but my point is it does depend on a justice's biases.


David Timothy Beito - 7/2/2005

The fifth amendment allows takings but only for "public use." Is seizing property as a means to benefit private developers public use? I don't think so.


John Arthur Shaffer - 7/2/2005

My question is how does Thomas get to the point where Kelo is unconstitutional? The fifth amendment allows takings with just compensation. His belief that just compensation is impossible is his own belief, ungrounded in a strict reading of the constitution.

His injection of race is evidence of his judicial activism in this case.


M.D. Fulwiler - 7/2/2005

Thomas believes that the Bill of Rights applies to state governments and limits federalism to a degree, but does not find any right to privacy in the U.S. Constitution that empowers the federal judiciary to overrule state legislatures on the issue of homosexual sex, even though he is personallly against sodomy laws.


Aeon J. Skoble - 7/1/2005

Sorry, my bad.


John Arthur Shaffer - 7/1/2005

Just curious how this opinion squares with Thomas' not voting to strike down the sodomy laws in Texas? He stated clearly that as a legislator he would vote against them but felt it was up to the state to have such laws.

What is different here? What good is protection from eminent domain when cops can bust down your door and arrest you for engaging in a consensual sex act?

It seems like the big federalism proponents on the court balk when it fits their interest. In this case Thomas evoking disenfranchisement of minorities that is so outrageous that he must over ride democracy.


William Marina - 7/1/2005

I meant the comment as Steve suggests, that both groups have members who tend to get carried away with Theory over History, although few Libertarians would go as far as Wolfowitz recently in simply dismissing the Downing St. Memos as simply history.


Steven Horwitz - 6/30/2005

I didn't read it that way Aeon. I read it as "Some libertarians, as do the Neocons..."


Aeon J. Skoble - 6/30/2005

William, you imply that "neocon" is a subset of "libertarian." Not sure that's right.


Sheldon Richman - 6/30/2005

I did not consent. Did you? When I walk through a park knowing muggers hang out there, have I consented to being mugged? I think not.


William Marina - 6/30/2005

What I like about Mises is that he spoke about Theory AND History.
Some Libertarians, like the Neocons, would like to replace History with pure Theory.
Feudalism existed, guys! I always liked the "windfall" idea.
Certainly, historically, the State claims to have the ultimate legitimacy on the land question.
Some environmentalists would like to bring back Feudalism. In 1984 in an article in the So. Fla Bus. Q, & later in A History of Fla, I pointed out that the 1500 pages of Gov. Bob Graham's so-called "Growth Management" plan was simply a New Feudalism which Jefferson would have recognized as such.
Historically, however, there are more problems with all of this than Justice Thomas alludes to.


Jon Robins - 6/30/2005

While I'm not a huge fan of eminent domain, the issue of consent can, I think, be satisfactorily addressed without wiping out eminent domain.

Essentially, when you consent to live in a state that you know has legal uses of eminent domain, you consent to abide by those laws. The overwhelming majority of people never have to suffer from them and don't care; the handful who do can pack up and leave (which is exactly what eminent domain tries to get them to do). Since the American border (much less that of Connecticut) is not closed to emigration, there is no state-sponsored coercion keeping people here to suffer the abuses of eminent domain. Therefore it is a matter of willful consent, at a basic level.
It's like paying taxes - it's an invasion of private property, but you consent to do so (by 'social contract', perhaps?) because you know everyone is subject to the law and it is a requirement of residency in a particular locale. When you purchase real estate in a location, you may own the property but you are governed by the overall social contract - think of it as a nationwide condo association.


Aeon J. Skoble - 6/30/2005

As Donald Duck might say, disgusting.


Max Swing - 6/30/2005

Exactly, in Germany, this law was taken over by "democratic governments" almost literally from the first chartas between noblemen and commoners (somewhere around 1848). They were legitimated by the notion that, f.e. a motorway would be a surplus rather than a downer for those who had to move their houses in order for the motorway to be built.
The government has to do two things before it can annex the land it wants. First, notify the owner, second make a reasonable demand and a pay for the land. If both has been done, but the owner doesn't accept, the administration has the right to occupy the land and remove the owner without compensation.

This sounds a bit like Douglas Adams, but it is exactly the same in reality. And the legitimation for this act is the idea that it will be a benefit for more people compared to the number of people harmed by it.


Sheldon Richman - 6/30/2005

As I was informed recently, the "real" in real estate comes from the French word for "royal." Eminent domain is a vestige of absolute monarchy. The king's claim is superior to any other. We all live on the land at the pleasure of the sovereign.

From Wikipedia:

In spite of the name, real estate has no connection with the concept of reality (in other words, the law does not consider real property more "real" than personal property). It derives instead from the feudal principle that in a monarchy, all land was considered the property of the king. Thus originally the term real estate was equivalent to "royal estate", real originating from the French royale, as it was the French-speaking Normans who introduced feudalism to England and thus the English language....

Aeon J. Skoble - 6/30/2005

"In other words, what makes a transaction just and legitimate is not compensation but consent."

Excellent point -- this a strike against the very notion of eminent domain, of course, not just the excess of Kelo. You know, the more I think about it, the very phrase "eminent domain" is getting me pretty steamed. What a thoroughly monarchist concept.

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