Kelo v. New London seems to have created a political issue which unites extremists against the moderates, which is pretty interesting in and of itself. Contrary to what libertarians like Eric or Abu Gingy might believe, I don’t welcome this expanse of government power. This isn’t “quasi-socialism,” it’s quasi-fascism–how do we know? This isn’t even “private property be taken for public use, [with] just compensation,” as the Constitution would say; it’s yet another advance in the legalization of corruption, the taking of private property for private use. This is corporatist syncretism, which is really just fascism with an friendly face.

Lefties really need to have a Sister Soulja moment with the majority justices here. It’s a violation of the progressive code of ethics; it’s not even remotely taking from the rich to give to the poor. The application of this principle will necessarily be used against poor people, often those whose only real asset is the family home in a now declining area. (Middle class libertarians can rest assured their houses have a very low chance of being seized by locally elected Communists.) It’s not that the state is (just) abusing eminent domain by lowering the standards for seizure, but that the state is giving away this property to what are necessarily its clients and cronies. Gerrymandering will take on a whole new meaning when you can chase out a whole tract using this legal equivalent to arson. And don’t think for a moment the powers that be will hesitate using a tool to which they may be philosophically opposed; remember when the Republicans were the party of states’ rights? Or that whole frenzy around Congressional term-limits? (That term limits one was hilariously transparent.)

Contrary to hysteria, the ruling does not abolish property rights. In a free market, everything is supposed to be fungible, convertible into liquid assets. Theoretically, the owners of the seized property are compensated according to the market price (although the government’s interests are obviously geared towards undervaluing the property). But is everything as easily commodified as the market requires?

Let’s backtrack for a minute here. “Property” is only possible when security has been assured by a particular monopoly over the use of violence. The state has been put into place (and its police forces focused on the task) to protect property. Specifically, to protect the propertied from unwanted extensions of democracy–that is to say, economic as well as political equality. Back when the terms “liberal” and “conservative” meant “republican” and “monarchist,” the counterargument to democracy was that mob rule would ruin a society without the clear moral guidance of a despot, and that the rich would be consumed by the poor.

What made Western democracies possible (besides the slow extension of the franchise) was the rise of the middle class, a group with just enough property to demand its protection but not enough to buy it the kind of political influence the really propertied want and receive. Kelo v. New London marks an important moment in America’s class struggle; the rich (having coopted government, the poor’s only aid against the hegemony of wealth) have declared they are done fearing the poor and are now officially taking aim at the lower middle class.

Kelo v. New London enables, as surely it will now expand, the booming market in governmental corruption. If this were a Congressional act, I’d call it a giveaway to the lobbying industry. And mark my words, this is a tidal wave which will eventually engulf every ghetto in America.

Now, because this is the Supreme Court, you can bet there will be all sorts of legal philosophizing about the impact of the case in terms of one ‘ism’ versus another, which I shall do my best to ignore. Why?

Between Statists, originalists, federalists, states’ rightists… the truth is, there are really only two kinds of legal theorists; deontolgists (often called “liberals” in legal philosophy) and positivists. This was revealed to me in my Philosophy of Law class, where I threw my lot in with the positivists, even though between the two of them, you could say it’s the most conservative option. Positivism isn’t pretty, but it makes the most sense.

The Declaration of Independence pretty much sums up the tenets of deontology:

” We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…” (Psst… originalists: does this mean that women shouldn’t be considered as having those rights as well?)

The problem with declaring that these rights are God-given and inalienable is that you still have to specify which rights those are. I read the Bible and it doesn’t say anything even remotely close to the Bill of Rights. To say that certain rights are God-given is completely meaningless, because if anyone told you they had spoken to God recently about this, you’d just think they were crazy and go one trying to divine God’s plan for yourself.

But the American Revolution needed a moral clarion call, a rallying justification for rich people wanting something and getting poor people to die for it. Remember, “original intent” includes property requirements for voting, so the poor were just trading masters at that point. The same way the Emancipation Proclamation transformed the Civil War into a liberation movement, the Declaration of Independence established not just a new legal philosophy, but a new legal beachhead for Deist theology.

Look at the language; it implies a Prime Mover who is responsible for granting vague ‘rights,’ but is unwilling to intercede on their behalf, leaving it to the people to declare and defend those “inalienable rights.”

In fact, the very process of declaration, of commiting sentiment to text, puts the lie to deontology. God doesn’t need defenders, but people do; and particular people will define a particular sets of rights as “god-given,” as diverse as the gods and cultures of the declarers. In order to have rights, says positivism, they must be posited, promulgated, fabricated from thin air by human beings. As John Austin said famously,

The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation. (Austin 1995: Lecture V, p. 157)

Even natural law advocates acknowledge the very notion of a ‘right’ is meaningless unless placed in an oppositional context to others’ rights within a society. Whereas some legal systems might recognize a God-given right to blood vengeance, or spousal abuse, or freedom from religion, the manifest truth is that it was mere mortals who actually ennumerate those rights.

Saying that our rights are God-given makes as much sense as the monarchy claiming the divine right of kings; both were accepted as truths because they were useful to the power structures being established.

Getting back to Kelo v. New London, the majority opinion is still legally reasonable, even if the implicatons of the ruling are abhorrent. (Personally, I think it violates the 14th amendment, but I’m sure they dealt with that objection somehow.) I think an eminent domain amendment which prohibits the use of land seized for private ownership would be a much better use of our time than trying to stop flag-burning.

Here’s a link to my previous article about how eminent domain is being abused in my neighborhood–it’s the very definition of crony capitalism: Ratner vs. Prospect Heights.

Before I forget, there’s an excellent and less meandering analysis at Sun Moon Stars Rain.