American judge Alex Kozinski, interviewed recently in U.S. magazine Reason, is roughly billed as a ‘libertarian’ judge. He is asked, among various things, for his views on the infamous Kelo eminent domain decision, which relates to the case in which a local municipality in the States won the power to evict people from their own homes in order to redevelop a site for commercial and tax-raising reasons. It is a decision which has scandalised classical liberals and defenders of property rights. Yet Kozinski thinks the decision is fine, and comes up with the following jaw-dropper:
What’s the difference between taking property for public roads or anything else? Do only public automobiles travel on public roads? I don’t understand why it’s a problem. If the government thinks the city will benefit by having a road there instead of having your house so that people can drive their private cars on it, then it has to make that decision. Who owns the road really doesn’t matter. What matters is that it makes it easier for other people to get from point A to point B using their private vehicles for private purposes. You could say “but it’s my house and my private purpose is more important than your private purpose.” But we live in a society.
“We live in society”. And so what? This judge is using ‘society’ as a sort of mystical incantation to shut down debate. His argument seems in broad terms to be a sort of utilitarian one: if the interests of a supposed majority are served by seizing the property of some people, then this is okay so long as ‘fair’ compensation is paid. His argument seems not to accept that though certain outcomes may be desirable, that it is necessary for the state to be constrained by certain long-term rules and institutions, most emphatically, by the existence of property rights. The judge’s position seems to be “property rights be damned”. If we imagine there are alternate uses of property that might put a gleam in the eye of a politician with property developers in his back pocket, then there is no limit to the assaults on property rights that could be permitted under the Kozinski formulation.
Eminent domain – what we Brits call compulsory purchase – can be justified, if at all, for creating certain facilities like a road, military base or law court that are essential for the peaceful ordering of a society, essential for human life and in the interests of all, and not just because it makes life a bit nicer for some or most of us, whether we be motorists or whatever. What is terrible about the Kelo decision is that it was driven by commercial gain, not a clear public interest such as defence of the realm.
After all, if the economic pie really is swelled by people selling their homes for new development, then that would happen in a market, albeit perhaps not in the neat and tidy way favoured by power-grabbing government official. Yet this ‘libertarian’ judge cannot see that. May we be preserved from ‘libertarian’ judges like this.
For an excellent book about this subject, see this work by Timothy Sandefur.
As an aside, I should point out that the reason I keep focusing on this issue is because American legal rulings and arguments have a habit of travelling across the Big Pond.
Jonathan- I thought you’d focus on this issue is because it’s a breach of liberty and that’s what Samizdata is concerned about, whether it’s in America or Britain. You have readers from both sides of the pond.
You’re right, of course… this judge is not ‘libertarian’ in the most commonly understood meaning of the word.
John, well, in the past, I have been criticised for writing about US issues, so that is why I put in that final sentence. I think a lot of Brits tend not to pay a lot of attention to the compulsory purchase issue and the way it can fuel political corruption. I guess the liberty argument can be taken as read, really.
I write about US affairs because I am interested in US affairs.
But yes, Kozinksi is by no reasonable a libertarian, or a classical liberal or anything but a run-of-the-mill statist trying to keep America save for property developers and the political class.
Well, I would argue that, since all power is delegated to government by the people, if they don’t have the power to start with, then government can’t be delegated it. If you are going to allow ANY eminent domain to occur, then it logically follows that that power was delegated by each individuals right to eminent domain.
The logical problem that the judge doesn’t notice is that eminent domain is a power of a sovereign over his allodial freehold. The US states, being the allodial sovereigns of all territory inside their boundaries, by right of conquest in the defeat of King George or other transfers of soveriegnty over the years, are the true landowners.
We the people, who hold fee-simple title to land, are vassal tenants of our respective states.
Most people don’t know or understand this feudal setup that remains in US real estate law.
Slowing creeping down the road to serfdom and as an American I have no idea how to put on the brakes, make a u-turn to sanity.
Give me Liberty from the National Socialist Democrat misery or give me death.
As I’ve found out in my own activism against eminent domain, it is an unfortunate relic that the founders left in the Constitution, just as they left slavery in it, that really doesn’t belong in a document by Enlightenment philosophers.
Until and unless we get a specific amendment passed that negates eminent domain, and converts all fee-simple tenancies into allodial freeholds, we will be left with this feudal albatross across the shoulders of the Constitution.
Dear Popes of the ibertarian Church:
Kozinsky is a small ‘l’ libertarian, certainly not a fundamentalist ‘L’ibertarian. So damn him for apostasy if you wish, or heresy if you think it more appropriate.
I see a common mistake here in that we are expecting a judge to rule with what he personally believes as opposed to what the Constitution and the law require.
Can you imagine what would happen if a Supreme Court bench filled with nothing but Scalia’s or Ginsberg’s would rule? Scalia would have the US turned into a nation subject to the most conservatve version of Roman Catholic Sharia you can imagine, and Ginsberg would have the US turned into some sort of infertile bastard hybrid of Sweden and Cuba. (yes, there is just a little exageration in there).
Judges are supposed to rule on what the law and Constitution say as best they can honestly understand it. Those that are not able to separate their own views from what they are required to rule should not be allowed to be judges and should be removed from the bench if they make it that far.
So Kozinsky aint a saint, in the Linertarian sense. Boo-stinkin-hoo. Neither is Milton Friedman, with his occasional support for a negative income tax. Lets burn him at the stake next. And maybe Rose too, for the encore?
Smited?!
I was smited for the comment I just tried to submit?
Way to go, libertarians…..
Editors note: “Way to go, libertarians…”??? Does this mean you find it odd that libertarians like to assert control over their own private property? Were you under the impression you get to set the terms and conditions under which you can put comments on our website?
Tom, ownership of private property is so basic to libertarian politics that if you don’t get that right you can’t be libertarian.
Tom, maybe you got “smited” on account of your overwrought sarcasm. Cool it.
I feel wholly justified in taking this judge to task for his views on emnint domain, Tom. It strikes me that if a guy goes around marketing himself as a “libertarian” judge, the very least one can expect is the ability to master the concept of private property rights. This is hardly arguing about a minor issue of detail, but a fundamental, core issue.
Tom writes
having clearly missed the fact that the quote in question comes from an interview with Reason magazine and (crucially) not from the text of any ruling from the bench. Further, Kozinski doesn’t justify his support of Kelo with any reference to the Constitution, but rather with some sort of strange utilitarian “maximize aggregate freedom” argument where the concept of “inalienable right” is nowhere to be found.
By the way, please explain the Constitutional case for the Kelo ruling? The Fifth Amendment only provides for the taking of private property for public use. There is nothing in there that implies that private property may be taken from one private owner and given to another private owner because the local council wants more tax money.
In any case, I don’t think accusiong someone who supports the government’s priviliege of taking property from private owners for profit-motive reasons alone of not being a Libertarian makes us the latter-day Inquisition. If someone purporting to be a Marxist came out against the workers’ control of the means of production, for example, I wouldn’t consider other Marxists unduly doctrinaire for excommunicating him. The sanctity of private property rights is as fundamental to Libertarianism as class warfare is to Marxism. You can’t be a Libertarian if you don’t believe in property rights. I’m afraid it really is that simple in this case.
A bit of versing in the Constitution enhances experiencing the full nefarious flavour of Kelo. The 5th Amendment of the Constitution, which prohibits the government from taking private property for public use without just compensation is an integral part of the Bill of Rights, which in its purpose and design is a limitation on govermental powers and is a protection of individual rights. The Bill of Rights and the 5th Amendment specifically were never intended to bestow any powers on the goverment, but rather are a limitation of governmental powers and a bolstering of individual rights. But Kelo turns all that on its head. After Kelo the proper interpretation of that portion of the 5th Amendment is: “The government is empowered to take any property from anyone anytime it wishes, provided it pays just compensation.”
This was said in context of having a comment summarily blocked by whatever comment-spam bot you guys use, after commenting on a post that seems to argue a somewhat holier than though attitude towards someone for not being libertarian enough. So it was rather annoying.
So far as sarcasm goes: Pot, kettle, kettle, pot.
I did read the Reason piece linked to. The judge, any judge, must be careful in what they say even when speaking as a private citizen. Scalia learned that recently, as have others judges, when they are forced to withdraw from cases due to remarks made in public. So I think you are drawing too broad a conclusion about Kozinsky than is warranted by his remarks.
So far as the property issue goes. Yes, property rights are basic to Libertarian thought. But the judge was not arguing they did not exist. He was arguing that the state has the authority to take property, after lawful process and with just compensation. He did not argue that there are no property rights, or that the state can just take it and tell you to go stuff-off. Under the US Constitution, he is absolutely correct. Arguments can be made as to how far that authority to take can go. Right now the argument that it goes very far is winning in judicial circles, apparently, so now the political debate has ensued.
While I do not think any of the Samizdatistas think along these lines, let’s take property rights to the farthest, most absurd, absolutist extreme I can conjure up at the moment:
A property owner on the U.S. New Jersey coast creates a boat launching and landing ramp, with a huge paved parking lot, 100 acres in size, with spaces marked ‘landing craft 1’, ‘landing craft 2’, etc…, along with a huge sign that says ‘welcome Osama’.
Or on the shores of Britain in 1942 with ‘Welcome Adolf’.
Or on the shores of China in 1930 with ‘Welcome Hirohito’ .
Or on the shores of Taiwan with ‘Welcome Mao’.
Would that property owners in these ridiculous cases have the right to allow his property to be used as intended by the structures and signs with no interference from government?
Would the government have the authority to take that land, with or without compensation, in this case? Or would it have to sit idly by, watching the ‘peaceful’ landing on private property until such time as the invasion force stepped foot off of that private property?
There is a not-small cohort of Libertarians that would say yes, the government must stand by while the private property is used that way.
I say non-sense to that.
While I think general libertarian philosophy best fits with human nature, more so than any other I have seen, and allows the good and bad aspects of that nature to work for the betterment of humanity; taking any philosophy to extremes ends up ignoring human nature and ends up making inhuman demands on people.
Altruism, when taken to extremes, can morph into socialism and then into communism. It is one thing to lend a helping hand to someone out of kindness, another to point guns at others to force them to lend a hand as well.
I find Libertarians demanding that all humans behave like perfectly logical machines, as some sort of perfected version of the star trek character spock, or perhaps biological Boolean logic gates. This is just as absurd, as is an absolutist position on individual rights.
Libertarians can also fall into the fundamentalist trap of declaring anyone that fails to live up to the smallest point of every aspect of the philosophy as a non-libertarian, and driving away those that would travel our path with us as far as they will. We see this in other religions as well. (yes, libertarianism can be a religion). Perhaps because I see so much of this in the US, with one sect of christians calling other sects non-christians, not to mention the divides between shia and sunni, or orthodox and reform judaism, that I find such fundamentalist belief very irritating even in minor cases. I always find it objectionable among people that are supposed to be ‘pro-choice on everything’, to use a bumper-sticker phrase.
This is one of many reasons why the US LP has failed to deliver on the promise it had in the 1970’s. It descended into a tempest of doctrinaire arguing. I was there and share some tiny bit of guilt at the local NJ level.
We have driven away those that would help us along the path to freedom simply because they want to take a detour here and there onto a different path, perhaps to rejoin later, perhaps not. Instead of welcoming the company on that journey where offered, and working together, parting ways amicably where needed, we throw stones and call names at those that disagree with us on some issues.
Libertarians need to start smiling and saying welcome, rather than scowling and yelling ‘Heathen!’ at folks. We might get somewhere then.
Better phrased as “a property developer with politicians in his back pocket”, no?
As an aside, having lived in both places, Britain is the only place I know of which still has public wlkways right through the middle of other people’s properties.
“Scalia would have the US turned into a nation subject to the most conservative version of Roman Catholic Sharia… “
It’s a little depressing that so obviously an intelligent man as TomW can write such absolute balls.
I invite you to read this article by Scalia.
As far as Ginsburg goes, however, you’re probably correct.
But to wrench the thread back on topic — Judge Kozinski is not a libertarian, small or large “L”: he’s a conservative. Read some of his opinions (he’s especially sound on gun ownership, by the way) instead of just trying to make him fit into the libertarian pigeonhole.
He’s especially conservative compared to the other Lefty Moonbats on the 9th Circuit Court of Appeals, which makes him all the more welcome.
Now Kim, those were rhetorical statements used to illustrate a point. Though I suspect I am equally correct and equally wrong in both cases.
I doubt that Ginsburg would treat Gays or political dissenters as harshley as Castro has done, nor prefer a society as homogeneous as Sweden does, nor do I think tha Scalia would vet every decision through the Vatican given a chance.
Though in both cases, political hegemony does strange things to people and often causes them to rationalize behavior they would otherwise condemn. Just look at what happened to the Smalkowskis in Oklahoma, victims of christian tyranny. Or what the US LP did to Hornberger and others that are perceived to have trespassed or challenged the party heirarchy. (a former candidate for chair comes to mind).
Nice try, kiddo, but as has already been explained to you, property rights do not fall into the category of “smallest point of every aspect of the philosophy.” They are absolutely fundamental to our philosophy. Calling someone who accepts that the government can take private property from one private owner and give it to another private owner – no “public use” involved at any level – a “libertarian” is like calling someone who doesn’t believe Jesus ever even existed, let alone died for his sins, a “christian” (chosen since you seem to like comparing religions to philosophies).
This isn’t a simple policy debate. Calling people who agree with Kelo “libertarians” is an abuse of the term. Some meaningful distinctions between political philosophies have to be maintained or else it’s useless talking about them at all. If a “libertarian” isn’t someone who respects property rights, then it’s absolutely impossible to say what a “libertarian” even is.
This isn’t intellectual bullying. It’s simple insistence that when people say “libertarian” they are, in fact, talking about libertarians, and not marxists or conservatives or fascists or whatever else. There are some core concepts that are inseparable from the term – and respect for property rights happens to be one of them.
As late as the 18th century there was an effort in England to use the principles of Feudal law to gain for the Crown any land that the owner could not prove clear title to.
Almost needless to say this effort was not really from George III (when he was healthy he was quite a nice man – and when he was ill he was not capable of organizing anything). – as normal it was the various individuals and groups around him who were really “the Crown”.
Even the Duke of Portland was threatened by the land grap.
However, Edmund Burke organized opposition in Parliament and it was formally declared that even when clear title could not be shown the present occupyer kept the land – it did NOT revert to the Crown.
A regime that could even threaten such powerful people as the Duke of Portland (and whose friends in the East India Company, Paul Benfield and co, had abducted the Governor of Madras, Lord Pigot, and held him till he died) could hardly be trusted to respect the property rights of American colonists.
But to return to this present legal opinion.
So the judge thinks that it is O.K. for the government (at whatever level) to take property from one man and give it to another man – if it things this will be better for “society”.
That is not a “conservative” opinion – that is the view of the French Revolution. Where property rights are only defended if they are for the social good.
The social good (or the good of the people – as opposed to any particular person) can go jump in the lake. Any robbery (and murder) can be justified as for the social good – “I would run that farm better than him so I should take it”, “I would use that money better than that old women, so I should break her thin old neck and…..”
Still the judge has one point. There is something similar about stealing land and giving it to someone to build a private road (or a store, or whatever) and stealing land and building a government road (or store or whatever) or it.
The land should not be stolen for government use either.
If people want to (for example) build a railroad they can buy the land voluntarily – and if someone will not sell there is no sacred law there says that a railroad must be totally straight.
When the landowners of Stamford (only a few miles from where I write this in Britian) blocked the complusory sale of the land to the railway company, the East Coast Mainline went through the town of Peterborough instead (where the local landowners where happy with it).
So the railway company did not get its first choice of route – so what?
As for roads. If there is not enough money to buy the land voluntarily the new road is not economically justified (if it was people would be willing to buy the land owners out at the price they want).
And if people do not want any amount of money (like the wine producers of south western France who are threatened by a major motorway) why should they have their traditionial way of life destroyed because some tidy minded admistrator thinks it is for the “social good”.
That is about as unconservative as it is possible to be.
It is neither libertarian or conservative to act as the enforcer for developers.
A conservative knows that a “society” is the web of voluntary interactions between human beings. It is not some master plan imposed from above.
Joshua, well said. If Tom thinks one is being “fundamentalist” by insisting on a consistent respect for property rights, then he clearly is nothing more than an apologist for grabbing the property of others and is no better than a socialist.