Richard Epstein Will Compensate You All (plus: Glue and 90210)

Any sufficiently coldblooded ideologue, like me, knows that even your worst enemies will occasionally “agree” with you — when your arguments happen to produce a few conclusions that they like.  Tempting as it is to relish these short-term victories — even to try building coalitions out of them — I think we’d do well to admit how feeble and shallow such victories are and press on to frankly address more divisive (yet important and foundational, not merely contentious) issues.  (I think virtually any time you hear libertarians celebrating some point of agreement with the left — and thus, at this juncture in history, virtually any cultural or legislative victory for liberty — it falls into this shallow-victory category, alas.  The left hates tradition, so they like medical marijuana, for instance — but wouldn’t if it were loved mainly by blunderbuss-wielding Republicans instead of hippies, etc.)

Still, even if the left doesn’t care about property rights per se, I am pleased any time the left displays skepticism about eminent domain, which is little more than legalized theft and right up there with burglary and taxation among things property-adherents should despise.

New York governor Paterson has expressed skepticism about eminent domain, perhaps in part because as a black man he’s more conscious than most on the left of the fact that poor black neighborhoods tend to be the ones bulldozed when the government decides to transfer land to itself or to well-connected businesses.  Right now in New York, two respected but hopelessly left-wing institutions, the New York Times and Columbia University, are in the midst of using eminent domain for selfish purposes, enlightened Columbia taking homes and businesses from unwilling Harlem residents (a good example of a case where leftists suddenly resent property violations — would that they still did when middle-class whites were the victims).

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Interestingly, with libertarians as divided as the rest of the world on the Israelis/Palestinians issue, some libertarians who sympathize more with the Palestinians see the issue almost as one of eminent domain abuse, citing the seizure by Israel of Palestinian land.  One past Lolita Bar debater casts the issue in property rights terms — and this summer we may well revisit the Palestinian question at Lolita with him as one of the debaters.  Meanwhile, my Iranian-descended friend Soraya e-mails to note that libertarian Republican Ron Paul has weighed in against Israel’s current campaign in Gaza, calling for an end to U.S. support of Israel.  Their arguments aren’t exactly false, but given the sticky political situation over there and the high cost of provoking either military or terrorist action, even an ideologue like me is inclined to think that compromise might serve both sides better than standing on strict principle (go ahead and call me a moderate if you want — I can take it).

In similar fashion, one audience member after our last debate asked me whether my strict-property-adherence view might lead to inefficient outcomes such as the quiet, stealthy buying-up by one rich man of a strip of land stretching east-west across North America, so that overnight he could start charging people exorbitant amounts to cross the strip of land and visit people on the northern or southern side of his land.  Now, there are countless economic reasons why this scenario is unlikely, including the fact that it would take a vast amount of wealth and covert business activity by one entity to pull off this odd act of sadism — and even in a fantasy world of absolutely inviolable property rights, the strip would still be surmountable by sea and air, and people might well respond by simply buying back bits of the land.

But if we go ahead and bite the bullet and say that situations like that might arise and endure, I think it’s worth noting that even in a regime in which property rights are the whole of the law, people aren’t complete morons, and they know that property rights can still, in the end, be violated (I’m not the only anarchist in this world).  What would help maintain the moral and legal authority of property-as-the-default, though, would be if everyone agreed that property owners still deserve compensation when their property rights are violated (and that such violations should only occur in extreme emergencies) — and the compensation needn’t be much if the owners really weren’t much aggrieved other than having their strip-of-land sadism projects ruined.

One can consistently argue that property rights are central, for instance, and think that a man who’s freezing to death in the wilderness can be forgiven for borrowing a snowmobile without permission (assuming he knows it isn’t needed by others and that it’s his only means of survival), especially if the law compels him to pay the owner for its use afterwards, which means everyone is made whole when all is said and done.

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A colleague of Cass Sunstein (about whom I blogged skeptically yesterday), U. of Chicago law prof Richard Epstein, is the authority on this idea of compensating people (at market rates, not just judges’ or politicians’ whims) for “takings” of their property, in keeping with the takings clause of the Constitution — and, he would argue, in keeping with the concept of eminent domain, properly understood and strictly limited (Epstein is a libertarian but not an anarchist like me).  In any case, this seems to me an example of how even the most strict-sounding property regime can be moderated to achieve the freedom and prosperity that markets bring while avoiding the (extraordinarily rare and thus not highly systemically-relevant) worst-case scenarios that people love to leap to in philosophical conversations.

Even girlfriend Helen asked me recently whether the possibility of a foe buying all the land around me to starve me constitutes coercion, if I’m for strict property rights, and I pooh-poohed the likelihood of the hypothetical — but the next day, as it happens, I heard the boss’s assistant where I work loudly freaking out at workmen in the hall who, with the permission of our building owners, were planning (in effect) to trap us inside the ACSH office for an hour while they spread super-strong glue all over the corridor — without advance warning — for construction purposes.  Is that coercion on their part?  (As it was, the boss’s assistant badgered the workmen into abandoning their project until after the workday, so we weren’t trapped — and no government involvement was necessary.)

I suppose, of course, one could simply argue that our implied contract with the building owner included ease of access/exit, though for the sake of my property-respecting principles, I might have chosen to defer to the owners and endure our captivity without complaint — though it might have necessitated urinating in the kitchen sink, since the bathroom would have become inaccessible.  I have to admit I feel a bit “freer” for having avoided that scenario — especially given the coffee I’d just consumed.  I hope we can all agree, though, that this unusual dilemma, however we frame it, does not somehow justify or necessitate the welfare state.  Start from strict property and zero government and tweak if necessary — don’t go looking for excuses to leap to socialism based on what Ayn Rand rightly condemned as rare, barely-relevant “lifeboat scenarios” from philosophy class.

P.S. I might as well note now, since it is unlikely to be any more relevant at any future point, that a libertarian friend of mine dreamt he was having an affair with Tiffani Thiessen from 90210 but had to hide under her bed during her tryst with her other lover, none other than Richard Epstein, who had blue skin in the dream.

Another libertarian I know said she envied my friend the dream, since she is attracted to both Epstein and Thiessen, not something you hear many people admit.  It may be best I avoid the naming both the male dreamer and the female fantasizer.