Positive Liberty

Stephan Kinsella criticizes my recent Liberty article on the grounds that I “display disregard for or ignorance of” federalism. This is a remarkable statement, given Kinsella’s own profound ignorance of federalism. His evidence? I begin the article by saying that in the Kelo case the Supreme Court “held 5–4 that government can seize private property and transfer it to developers.” Kinsella explains: “Notice this use of ‘government’ here in a manner that implies that the feds have the right and obligation to oversee all levels of ‘government’…. In the mind of these libertarian centralists, our entire national legal system is like a big pyramid, with the feds and its Supreme Court at the ‘top.’”

This is absolutely absurd. The Supreme Court in did hold that government—all government, local, state, and federal—can seize private property through eminent domain and give it to developers. The Court made no distinction between different levels of government in the case, and so my reference to the case also makes no such distinction. What’s more, I go on in my article to detail how states can prevent the abuse of eminent domain thanks to our federalist structure. How can Kinsella accuse me of ignorance about the subject when the entire subject of my article is the way states are dealing with the Kelo decision by passing (or not passing) state-level eminent domain reform?

But he’s led into this embarrassing display of ignorance by his belief—utterly without constitutional justification—that “the states are supposed to be supreme over and above the feds” and that they are “the parties to the compact that created that unique entity.” As I’ve explained many times in the past, states are not parties to the constitutional compact, and states are not supreme over the federal government. (It would be remarkable if that were the intention of the men who wrote the Supremacy Clause, which states, “This Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land…anything in the Constitution or laws of any State to the contrary notwithstanding.”) Kinsella has never refuted my argument on this point, but simply repeats his ignorance and intellectual dishonesty by reiterating refuted claims and refusing to mention my refutations. How sad if Kinsella were to set the standard for libertarian intellectuals.

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