property rights — VOICES for REASON

Eminent domain, the government’s power to seize private land for “public use,” was once confined to such humdrum business as condemning land for highways and power lines. But nowadays, eminent domain is being used to assemble large tracts of land for politically favored projects designed to fatten the tax rolls. According to Institute for Justice senior attorney Dana Berliner, writing recently in the New York Daily News, “anyone’s home, business or church can be taken” because courts have interpreted the Constitution to give “little or no protection to home or business owners.”

This expansive view of eminent domain has, in effect, given state and local government planners a blank check on the power to take land without the owner’s consent. In one such case that went to the Supreme Court back in 2005, Kelo v. New London, a local government made headlines by confiscating a woman’s home to make way for a private retail development. Civil liberties law firms such as the Institute for Justice have been trying to put the brakes on that trend by filing lawsuits and urging legislative reform, with some success.

As a result, however, public debate has increasingly centered on what’s called “eminent domain abuse.” This phrase has become so common that I think it’s a good idea to stop and examine what it assumes—and to question whether it’s the best way to think about eminent domain.

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If you’ll be in the Boston area in early July, consider attending the Ayn Rand Institute’s Objectivist summer conference. Voices for Reason writers Tom Bowden, Onkar Ghate and Elan Journo will all be speaking on topics of interest for pro-reason, pro-individual rights advocates. Read the rest of this entry »

For the first time in American legal history, a judge has explicitly endorsed important principles of Ayn Rand’s political theory in a published appellate opinion.

Judge William Nels Swandal’s passionate dissent in the case of Buhmann v. State, decided by the Montana Supreme Court, concludes as follows (beginning at page 94):

Ayn Rand correctly observed that the right to life is the source of all rights–and the right to property is their only implementation. Without property rights, no other rights are possible. These principles are embodied in the Montana Constitution in Article II, Sections 3 and 29. I invite the majority to read them. The fundamental rights to acquire, possess, and protect property are not even given lip service by this Court. Under the majority’s opinion, the State suffers no consequences for the exercise of coercive and unreasonable power in destroying these businesses. There is no serious effort to balance benefits and burdens. It may be too early to start asking, “Who is John Galt?” but more decisions like this will seriously impact all private property and business owners in this State.

I strongly dissent from the majority opinion.

In a footnote explaining the John Galt reference, Judge Swandal wrote: “In Ayn Rand’s work Atlas Shrugged, the phrase becomes an expression of helplessness and despair at the current state of the novel’s fictionalized world.

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A recently published book, Objectively Speaking, contains edited transcripts of some fascinating interviews Ayn Rand gave in the mid-1960s.

One of the interviews caught my eye because she discussed a legal issue that’s been in the news recently. The issue involves eminent domain (the government’s power to seize private property without the owner’s consent).

She began by making clear her radical position against eminent domain. She saw it as a “strictly statist principle” whose presence in the Constitution is a “major contradiction” to the principle of property rights. Then she analyzed problems that eminent domain causes in practice:

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I received a number of responses to my anti-smoking paternalism op-ed, arguing that exposing others to secondhand smoke is tantamount to assault, which the government needs to protect us from. They in effect raised the question: Does your right to smoke end where my nose begins?

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It’s bad enough that almost 40% of America’s land mass is owned or managed by government. That means private companies must plead on bended knee for permission to extract oil and minerals, or to develop land for profit. Result: a lower standard of living than we have a right to create for ourselves.

Now that same anti-development regime is seeping into the world’s oceans.

Just before leaving office, a stroke of President Bush’s pen created undersea conservation areas covering an area bigger than the state of California. They’re located in three areas of the South Pacific–near the Mariana Islands, American Samoa, and another chain of remote islands.

“The president has given the world a Texas-sized gift,” said Diane Regas, manager of the ocean programme at the Environmental Defence Fund.

But the marine reserves were as much a gift from Laura Bush, who was credited with heading off determined opposition from the vice-president, Dick Cheney, as well as business leaders in the Mariana Islands who had lobbied on behalf of fishing and energy exploration.

Economic prosperity depends on extracting raw materials for processing, yet the legally accessible globe keeps shrinking. When will we realize that government’s job is to protect private property, not to outlaw it? There are many difficult issues presented by the task of implementing private property rights in ocean waters and on the ocean floor. Our political leaders need to understand that their task is to look for the answers, instead of forbidding private property as a matter of policy.