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Friday, June 24, 2005

Kelo and the 'end of liberalism'...

Friend Ciarán noted, from the other side of the pond, the general significance of yesterday's US Supreme Court ruling in Kelo v. New London (CT). The ruling raises all sorts of interesting questions about the role and power of the modern state in liberal democracies, especially one so committed on an emotional level to private property as the US.

Just as I was reading Ciarán's blog post on the issue and entering a comment there, some folks sitting in the table next to me at Starbucks (yes, I am in the cushy chair again) began discussing the ruling -- in rather heated libertarian terms, I might add -- and I (of course) added fuel to the fire by challenging their rhetoric. Within a few moments it was obvious that they were not pleased to engage in a conversation about something they they were certain was just another sign of the evils of government....

What is interesting about the case -- and what is likely to make it a watershed in the political discussions of constitutional law in the US -- is that it represents the irony found in the "end of liberalism" logic articulated by Ted Lowi more than thirty five years ago. Viewed from the traditional and (much too) simple view of left vs right politics, the decision is bound to be seen as confusing -- with the traditional liberals siding with local government powers being exercised on behalf of corporate and other business/private economic interests and the traditional conservatives putting forward an argument for rights based on equality rather than individualism. Very confusing indeed....

Central to the decision, however, was an issue rooted in the powers and role of the Supreme Court itself, and here is where a re-reading of Lowi's analysis of the emergence of New Deal "interest group liberalism" is in order. For most of the first half of the twentieth century (and dating back to the 1850s, actually, in the issue of Dred Scott's status as 'property'), a central debate in US constitutional law was over the Court's application of "substantive" due process to cases involving the expansion of government involvement in the economy. This was not merely a reflection of the growth of national government power, for many of the cases related to the exercise of state and local 'police powers' over economic activity, including child labor laws and other Progressive Era reforms.

Through all its permutations over the decades, the issue (at least as it relates to property and government action in the realm of eminent domain) came to a head in the 1930s in the 'sick chicken case' (Schechter Poultry) which Lowi focuses on in his analysis, and the key question became (in its simplistic form) whether it was right for the Supreme Court to substitute its judgement of what was right or wrong (in terms of government action) for the political process (as reflected in legislation). As Lowi and others note, starting with a very subtle shift established in an obscure footnote in the decision in the 1938 Carolene Products case where the Court essentially held that its role was to defer to the legislated determination of what is proper for government to do in the public interest.

Reading the news accounts of the Kelo decision, it is clear that such deference was central to the majority opinion, and that the Court was not necessarily taking a stand one way or another on the question as to the wisdom of the the New London city government's decisions regarding eocnomic development.

Those who read the decision as an endorsement of the Court's 'liberals' of the the particular policy and program in New London are wrong and missing the more significant implications of the ruling for reflecting the nature and dilemma of American liberalism. Having long ago established the legitimacy and logic for sanctioning collective action through government decisions that might impact adversely on individual property rights, they find themselves indirectly in support of policies that adversely impact on values (equality, community sustainability) that are touted by the political left in the US.

In contrast, we have O'Connor (and, by their joining in the dissent, Scalia, Thomas and Rhenquist) highlighting the need for the Court to reassert its long foregone power to render substantive judgements (on behalf of the poor and underrepresented, they claim) on the work of democratically elected bodies. This, of course, is a bit of a surprise coming from at least two justices (Scalia and Thomas) who vehenmently and consistently argue against the Court's past use of substnative due process to assert privacy rights that are not explicitly stated in the Counstitution... They (seem to) fail to see where the reassertion of substantive due process implied in their dissent would lead. (It could be, of course, that they opted out of that particular part of O'Connor's dissent or issued their own -- I have yet to see the decision itself...).

Great stuff for us professional cynics....

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