Used A Little Too Much Force


New at Reason: Is the path of liberty paved with eminent domain condemnations? Richard A. Epstein, Randy Barnett, David Friedman, and James P. Pinkerton debate the use of force.

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  1. Epstein makes a case for limited coercion, but some problems are immediately apparent to me.

    I have a queston about his example of building a railroad and dealing with holdouts: we’ll just point our guns at the holdout and make him fall into line (eminent domain). Just because there may be a general benefit to others to have a railroad built, why is it assumed that someone, in this case, the railroad company gains a superior right to the holdout’s property. Isn’t the same true of Donald Trump’s desire to use the government to seize land to build parking lots. After all, that would be a general benefit to all the casino visitors that would have more convenient parking. Isn’t that always the case that is made when eminent domain is used?

    We may assume that it would always be desirable that railroad companies will lay tracks where they will benefit the most people. This is a market process after all. What we can’t assume is that, if the railroad can’t be built along the most desirable route that there wouldn’t be found, without granting monopoly power, another solution to the problem of transportation.

    The main problem I see in Epstein’s analysis is the problem of corruption. The U.S. government began as a minimal state with strictly limited powers, yet over time we see what has happened. Everyone is corrupted in some way by political power. The sanction of initiation of force by the government gives it the ability to feed itself. As it grows, it acquires more power, the greater the power, the greater the corrupting influence until all are affected. It is one thing to say better solutions are needed to keep that from happening, but it is another to actually ccomplish it.

    To Epstein’s comment about the problem of a large society with no central authority as an open invitation to some sleazy individual consolidating
    power in his own name. Duh! As if that weren’t a problem in societies with centralized power. There are examples beyond counting to illustrate this problem in state governed societies. I’d like to hear of examples of Epstein’s version in anarchic societies. What he is really saying, is that if there is no central authority, then someone will create one. Again; Duh!
    That’s because we live in a world dominated by a belief in centralized authority. This in no way manages to be a critique of a society dominated by
    a belief in libertarian style liberty. Where the right of self defense is universally recognized and guns equalize the ability to kill. I know, it’s just a theory. The point is that a theory that suits one belief system provides no useful critique of a theory that fits a different belief system.

    The problem with theories in this discussion is they are presented as if we could push a button and everything could be changed to fit the theory. It is futile to attempt to design a final product for a self evolving system.

    Societal and political processes take place as manifestations of human belief systems. Different theories of which social/political ideal to aim
    for will appeal to different people depending on what they believe. There is currently no unity of belief either in the ideal end state or in how to get there. As long as this is the general state of things, neither Epstein’s, nor Friedman’s, nor Barnett’s, nor Pinkerton’s vision has much relevance outside the arena of philosophical debate.

    The only way to shift the direction of social evolution is to modify what people believe. What political/social theorists have not provided is a
    useful theory to do that. Until then, theories of ideal ends will lie on the other end of unidentified means. The real question at this time is not what destination to aim for, but in which direction to go and how to get sufficient numbers of individuals to shift our common direction from an ever growing state to a diminishing one. When we get to the right place, if there ever is a right place, we can then deal with the remaining problems. At this time we don’t know what those will be.

  2. There is no real distinction between good and right.
    The problem with limited government in the real world is keeping it limited.
    Transgenerational sensibility will shift to accomodate what was unacceptable at the beginning. If it is decided that we need some exception from the prohibition of initiation of force for the common good, it it only a matter of time before nearly everything the exception is extended and very little falls outside the realm of “the common good”.
    IT’s equivalent to saying, “we don’t want any flies around here.” and then putting an open jar of honey on the table.
    I don’t disagree with the idea that government out to be limited, I don’t think you would find very many that would support the reverse. The question is: limited to what? That’s where the disagreement arises and so the struggle begins.

    It’s easy to see that society and the economy function better when government is limited, but I want to see some example or similar proof that society and the economy won’t function without granting some exception to the moral stricture against the initiation of force.

    We might say that having the stricture and some means of enforcing it constitute government, but how can it be that the stricture can’t be enforced without violating it?

  3. On eminent domain (sp?), some good commentary by Tibor Machan. “Airports and Individual Rights,” Ideas on Liberty, Feb. 1999.

    “Some people will say that stringent protection of rights would lead to small airports, at best, and many constraints on construction. Of course?but what?s so wrong with that?

    “Perhaps the worst thing about modern industrial life has been the power of political authorities to grant special privileges to some enterprises to violate the rights of third parties whose permission would be too expensive to obtain. The need to obtain that permission would indeed seriously impede what most environmentalists see as rampant?indeed, reckless?industrialization. But it could also significantly impede environmental enthusiasts who gladly violate other people?s rights in striving for their objectives (which at times involve returning to a pre-industrial age).

    “The system of private property rights?in which building, traveling, farming, woodcutting, and all other kinds of other human activity must be conducted within one?s own realm except where cooperation from others has been gained voluntarily?is the greatest moderator of human aspirations, keeping them in balance with the diverse and reasonable aspirations of all others. In short, people may reach goals they aren?t able to reach with their own resources only by convincing others, through arguments and fair exchanges, to cooperate. “

  4. Right, having government seize land for railroads wasn’t exactly beneficial to the native indians.

  5. Sam

    Both eminent domain AND taxation have been around longer than the republic, and Americans are not less free today than in the past, they are more free. “Slippery slope” arguments are demonstrably UN-true.

  6. As for a single piece of economic legislation that was practiced until modern times, here’s one: insider trading, a fiat crime that did not exist until modern times. Here’s another: Selling marijuana. Didn’t used to be illegal. Same with cocaine, once an ingredient in Coca Cola and available at pharmacies (as was opium).
    Try carrying $ dollars out of the country with you 10,000. Try selling oranges outside of government restrictions, marketing orders, for the purpose of restricitng the supply of various agricultural products were enacted under FDR’s new deal. Now you may say: so what, I don’t sell ornages, peanuts, or sugar, so they don’t affect me. That’s not the point, they APPLY to you and all who live in this country. And they affect you, the purpose is to keep the price higher than the market would otherwise bear. The price of sugar in the U.S. is 6X the world market price because of protections for the sugar industry.
    With dairy subsidies, the government takes money from you to buy dairy products so that you have to pay a higher price for dairy products. Another New Deal product.

    What’s more, under wetland protection legislation and similar legislation. Property owners face more restrictions on the use of their land than ever before. It doesn’t even have to be actual “wetland”, it only has to be declared such.

    I must disagree, especially in the sense that you have less freedom to dispose of your income as you see fit. As government at all levels takes between 40% and 50% of your income, directly and indirectly. You have no option at all on what it is spent on. You don’t like sending money to despots on other countries…too bad. You don’t like subsidizing the defense of other countries…too bad. This certainly was not the case before the income tax was established in 1916.
    Now, not only is the federal government more involved, but local governments have instituted a plethora of laws and regulations as well that restrict your use of your own property.

    While liberal sensibilities have eased regulation of some personal behaviors (sex), economic regulation, property use regulation, business regulation, etc. have all increased substantially.

    The number of laws has increased to the point that now one can even know what is legal and what is illegal. One survey of college students revealed to 100% had committed some felony at some point. Most of them probably didn’t even realize that what they had done was illegal.

    And don’t ingnore the war on drugs, never before has such a large percentage of the U.S. population been put behind bars. If that’s more freedom, I need to know how you define it.

    What’s more, justice is being preverted. In the war on drugs, the justice department is making deals with criminals and sending innocent people to prison. Check out for more on this.

    But mainly, the size and scope, and cost, of government at all levels has increased by magnitudes over what it used to be. This is the income that citizens have earned by their labors that is taken from them. What’s more, this is increasing. Despite Bush’s tax cuts, spending has increased, the debt is increasing, and eventually, taxes will have to be increased even further.

  7. I must disagree: to take your first example, insider trading rules have been a part of every stock and commodity exchange in North America since we have had them (there have been many, and most were created as quasi public entities by state and municipal government), and have had civil and criminal sanction all along…it was merely that Federal regulations emerged in the 30’s.

    I suspect even currency transfers could be effectively blocked by state governments throughout most of our history, as they often issued the currencies Americans used.

    The point is, why does freedom exist in America, or anywhere else in the world? Why does it exist at all?
    In part, simply because it is productive,
    also because some notion of personal sovreignty is simply a natural desideratum for human beings and inseperable from any of our common sense notions of fairness,
    and because in some parts of the world (namely the early American colonies) a nugatory form of consensual government created a “space” implying some notions of debate, and ultimately individual dissent– “private choosing”.

    Since the arrival of consensual government, all our choices exist across a range– not a “slippery slope”– with an increasingly refined and unbreachable sphere for personal decision-making.

    Anyone who wails about the sad state of our civilization is getting it wrong.

  8. So you have no concern that an increasing portion of personal income is being consumed by government, (and a fair amount of that is some form of a transfer to corporations, wealthy persons, and foreign governments)?

    And you have no problem with the millions convicted and sentenced for consuming their drug of choice and having caused no harm to others?

    “I doubt seriously, you could find a single piece of economic regulation, or any other intrusion on liberty, that wasn’t practiced with enthusiasm”

    I offered several examples to refute your assertion and you only countered one. Am I to assume that the others stand? Obviously, the example of the freedom to sell drugs that the government has decided to prohibit is one you will be unable to refute. You can’t even sell bongs. They arrested Tommy Chong for that.

    I’m not wailing about the sad state of civilization, whatever that is. Civilization is in flux and has, as always, a mix of good and bad. My complaint is that having a government taking so much personal income and using in ways that I take exception to, and even in ways that cause me and others harm, is not consistent with the idea of personal freedom.

    I don’t think you can tell me that the tax rate has been going down, so I’d like you to explain how having government taking an ever increasing percentage of personal income increases personal freedom.

  9. Don’t get me wrong Sam, I would prefer to see an America with a great deal more economic freedom, and it shames me that we rank something like ten or twelve in the world (and perhaps that is generous) by most measures…we ought to pull up to Win-Place-Show, at least!

    Epstein’s argument for some kind of residual condemnation/taxation in an otherwise nearly free-market utopia lies so far from anything we have ever experienced that it seems silly to invoke the slippery slope now…hell, we are at the bottom of the slope, scrambling for traction!

  10. I had a brief email exchange with Epstein after this piece was published, defending anarcho-capitalism. I think his arguments about ancap stability are pretty weak. You can find the exchange here on my blog

  11. Well, if you examine the intent of the founders and the size and scope of the Federal government then vs now, it is obvious that the slippery slope argument, in this case, is quite relevant.

    As for Americans being more free, in some ways maybe, but from the legal standpoint, no.
    Starting a business 150 years ago entailed very little legal difficulty, but today one must navigate more significant legal obstacles.

    The amount of taxes paid by individuals in 1900 was very low and only applied to very wealthy people. The tax rate is much higher now and applies to virtually everyone.

    Before the original prohibition, there were no restrictions on many drugs that now would get you in prison.

    Economically, and in other ways, people are much less free now.

  12. Also, the number of laws restricting citizens is much higher now than ever.

  13. Sam

    I doubt seriously, you could find a single piece of economic regulation, or any other intrusion on liberty, that wasn’t practiced with enthusiasm (and essentially without restraint) by state and local jurisdictions going back to Revolutionary times and before.

    Until the 20th Century the Fed wasn’t so much into the act– it lacked the incentive or the machinery– but Americans were NOT freer…merely oppressed by more local jurisdictions (as well as, too often, unrestrained mob sanctions)…

    and without the elaborate system for the protection of, at least some, individual rights erected in more recent times.

    Prior to that, what freedoms Americans enjoyed were more in the way of broadly observed customs– not enfocable guarantees under law.

    That is just reality: the “slope” has been going the OTHER way. We are more securely free today, AND more prosperous.

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