January 25, 2006
WRTA
 Brown
Shoes Diary
The Domain of Eminent Domain
As every lawyer could tell you, the principle of eminent domain
entitles the government to take private property for public use provided just
compensation be given in exchange. It seems a sensible enough idea to
allow government to take property to build ports, highways, canals, and
assorted other examples of infrastructure in order to increase the value of
everyone's property and facilitate its exchange. The phrase used by the
Founders was to "promote the general welfare", where the operative
word is "general." Government actions must benefit everyone
or no such action should be taken. For example, the government's taking
of a person's property at the mouth of a river to build a port can only be
just if the property of everyone upriver becomes more valuable and that
increase in value is used to properly compensate the dispossessed individual.
Eminent domain has legitimacy to the extent that there are public goods and
services that only the government can efficiently produce. At the risk
of scaring away readers, I have to make clear the definition of "public
goods and services" in this context. Simply put, a public good or
service is one that is non-excludable. When we create a national defense,
for example, there is no way to exclude any citizen from its benefits.
Hence, there is the free-rider problem attached to public goods and services,
which makes it difficult or awkward for the private sector to produce.
A mosquito abatement program would be another example of a public good since
it benefits everyone in a particular region and you cannot exclude people
from its benefits. Again, the private sector may not have the
mechanisms to overcome the free rider problem and its flip side, the hold-out
problem. (One thing that most definitely is not a public good is a
government school, even if it calls itself public. You most certainly
can exclude people from using schools and so the creation and administration
of all schools properly belongs to the private sector.) These ideas are
well understood by economists and the usual solution to providing public
goods and services is government--everyone is forced through taxes to
contribute and everyone benefits. The key proviso, however, is to be sure
that the people losing their property to eminent domain are given fair
compensation. This is to assure that government doesn't undertake those
projects that benefit special interests rather than the general welfare.
Let's continue our lesson in Citizenship 101. The foremost expert on
eminent domain is University of
Chicago Law Professor, Richard Epstein. (There's a transcript of an
interview with Epstein at http://reason.com/9504/epstein.apr.shtml--it's
definitely worth a read.) Professor Epstein published a book in 1985
entitled "Takings," which was an economic and Constitutional look
at the Takings Clause in the Constitution ("Nor shall private property
be taken for public use, without just compensation"). He gave a rather
strict reading of the Clause, which is to say, he claimed it put great
restraints on government. All you need to know about how right he was
involved Joe Biden's view of the book. Joe Biden held the book up during the
1991 confirmation hearings of Clarence Thomas and said with obvious contempt
for the book, "Judge Thomas, you don't really believe what Professor
Epstein has to say, do you?" Now to my mind, that's about the
strongest endorsement a book can get. If Joe Biden is against it, it
must be right on the mark. The main point to remember is that eminent
domain specifically, and government in general, ought to be greatly limited.
Interestingly, Senator Patrick Leahy has a Biden-ized view of Samuel
Alito. "This is a nomination that I fear threatens the fundamental
rights and liberties of all Americans now and for generations to come,"
Leahy bloviated yesterday. He also said that should Alito be confirmed
it would mean, "intrusion by government into people's lives."
Is John Stossel around--Senator Leahy, give me a break!
Government shouldn't be intruding in people's lives, Senator? Then why
do you defend its interference in the employer/employee relationship.
It interferes on issues of hiring, firing, pay, time worked, breaks, leave,
vacation, health benefits, insurance, retirement benefits, working conditions
and even interpersonal behavior. Government interferes with the
education process although it's more accurate to say it tries to control the
entire process. No doubt to make good little servants out of us all.
Government intrudes in people's bathrooms, Senator, telling us what size
shower heads and what capacity toilet tanks we can have. Government
intrudes in our own retirement planning and in our own investing and
banking. Government intrudes in how we manage our own property in more
ways than I have time to list. Government intrudes directly into our
healthcare and in the relationships we have with our healthcare
providers. The government intrudes in our personal earnings and
expenses. (Ever been audited by the IRS? Similar to a colonoscopy
with an oversized, serrated scope and without anesthesia.) Government
intrudes on our rights to own gun, even though that is explicitly forbidden
by the Constitution. Government intrudes in everyday decisions we make and
even in our charitable pursuits. It rewards us for doing some things it
deems proper and penalizes us for things it deems improper. Government
attempts to manage an economy that is suppose to be entirely free. (What part
of free enterprise, don't you understand Senator?) Government intrudes in our
purchases both within and without America. It has no respect for our personal beliefs
and will pass laws making them illegal. I have to ask, Senator Leahy,
how much more intrusion do you think is left for government to do? And
since this all happened on your watch (31 years you've been part of the
problem) don't you think you have some culpability? Why slander as good a man
as Samuel Alito? Have you no shame, Senator? Well, no, obviously
you don't.
Each of these intrusions is properly understood as a taking by
government. Government is trespassing on our rights, taking them under
the pretext of the public good. We are almost never given any
compensation, let alone "just compensation," for these takings
despite the clear direction of the Constitution. In reality, everything
and everybody has become the domain of the government and the Constitution is
simply a museum piece. The sad fact is, that limited government
no longer exists in America and hasn't for some time. I long for the
time when eminent domain returns to its original purpose: a mechanism for
restricting government activity and thereby safeguarding liberty.
Contact John D McGinnis
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