Idea storage

Friday, June 24, 2005

Supreme Court's decision to allow eminent domain for economic development (as long as certain conditions are met)

In yesterday's Kelo v. New London, a 5-4 majority of the Court approved the Conn. town's eminent domain to be used for economic development, as long as the town had a plan for how the taking would serve a public purpose. That is, the town couldn't just take the property so as to confer the benefit on another private party. But otherwise, the town could take the property to serve the public interest.

A lot of blawgers are talking about this decision: e.g., the mysterious Volokh conspiracy, and SCOTUS blawg -- each including links to a variety of different commentaries.

I have mixed feelings about this issue, I have to say. In my younger adult life (I'm 31 now), that is, about five years ago, I was a true believer in libertarianism -- Nozick and Friedman style, more or less. I can articulate the libertarian position in debate easily, and even as of two years ago, during the Bush-Kerry N.H. primary battle of '04, I frequently argued with Howard Dean volunteers, advocating a libertarian position (of course, I was not popular with those jokers, but they're all gone now anyway).

But I've gradually come to soften substantially in my libertarianism, in large part because of my disillusionment with the notion of rights, as a fiction introduced to justify the maintenance or seizure of power. As I mentioned before, my second reading of Nietzsche had a powerful influence on me that brought home a few things, and caused me to embark and a study of the basics of the theory of evolution (still have a lot to learn, of course - and, truth be told, I'm excited about it).

I still have libertarian leanings, because I do believe that power tends to corrupt, and bureaucratic institution of all sorts tend to take on a life of their own, including the "desire" to grow and ultimately reproduce. It may be, as David Friedman notes, that libertarianism, from a utilitarian perspective, has value. That is, he has stated that he is a utilitarian morally, but believes that a Kantian-type of respect for rights as having value in and of themselves, regardless of their utility, will ultimately produce the greatest utility. If that were the case, wouldn't be that convenient? Almost some sort of proof for God, although I couldn't tell you what Friedman's metaphysics are, if he has any.

Anyway, bottom line is that I don't know how I would have decided this case. The underlying criticism seems to be that corruption can never actually be proven, but it is their on some level. That is, the public won't actually benefit, only a big business that was able to influence a government. It's the case for small government, no doubt.

On the other hand, what if that turns out to be false? What if there is a case where say, it's a rich person who owns a lot of land, and it really is in the best interest of the public to take that particular land? Is the anti-Kelso argument that that's simply not possible? Or is the argument that that's possible, but the private person's property rights should never be trumped?

I know the following line of reasoning will infuriate libertarians but let me just toss it right out there: if we take the "anti-takings," or the "hard libertarian" position to its logical conclusion, then the land all belongs to the natives (what's left of them, anyway). Sure, the building belong to "us," but the land belongs to the natives. We stole it from them and everyone knows it. Why isn't the true libertarian position that the land should go back to the natives? Somebody explain that to me. Then we'll talk about the stupid fifth amendment.


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