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Donors, Democrats, and Eminent Domain

September 9, 2007

Tags Legal SystemPhilosophy and MethodologyPolitical Theory

Issue 21.2 of the Journal of Libertarian Studies offers a variety of perspectives on constitutional interpretation, American democracy, and alternatives to state provision of law, prisons, and welfare.


 

  • Defenders of the welfare state often assume that without tax-funded aid to the needy, private charity would be inadequate to fill the gap. In “The Costs of Public Income Redistribution and Private Charity,” James Rolph Edwards challenges this assumption. Thanks to competition, Edwards argues, private charities are more efficient, rarely losing more than 30% of their revenue to overhead, compared with the 70% absorbed by overhead in government welfare programs. Private charities also have a better track record than welfare programs in helping recipients become independent, while lacking the negative impact on economic growth (and thus on the source from which charitable provision derives) that comes with forcible redistribution. Hence, Edwards concludes, there is every reason to expect private charity to be far more effective than government programs. (Incidentally, a reader recently pointed me to this New York Times story complaining that “[f]or every three dollars they [private donors] give away, the federal government typically gives up a dollar or more in tax revenue, because of the charitable tax deduction and by not collecting estate taxes.” It might be worth keeping Edwards’ data in mind in evaluating such concerns.)
  • If, as libertarian anarchists contend, competitive, market-based legal institutions are more economically efficient than monopolistic governmental ones, why don’t anarchist proposals encounter a more favorable reception? In “Democracy in America and the Possibilities for Law Without the State,” Brian Smith argues that in assessing the prospects for statelessness we must take into account not only economic incentives but also cultural values. Drawing on Alexis de Tocqueville’s account of how the democratization of culture erodes aristocratic mores and promotes political centralization, and noting that such aristocratic mores bear a strong resemblance to those which govern stateless societies, Smith suggests that democratization accordingly poses an obstacle to the successful implementation of a stateless legal order. But Tocquevillean considerations also afford the anarchist some reason for hope, as increasingly effective means of communication foster the media’s role in building private associations.


  • That the Jacksonian Democrats were far from libertarian in their policies on slavery and Indian relocation is well-known; but with regard to the liberties of whites, or at least of white males, they are often credited with a proto-libertarian commitment to economic individualism and laissez-faire. In “The Limits of Jacksonian Liberalism: Individualism, Dissent, and the Gospel of Andrew According to Lysander Spooner,” Raymond James Krohn argues that the Jacksonians were far less pro-market than their reputation, and contrasts their record, which Krohn sees as patriarchal and conservative, with that of their contemporary, radical libertarian Lysander Spooner. Krohn regards Jacksonian opposition to the Bank of the United States, for example, as motivated more by a general distrust of mercantile society than by the kind of specifically libertarian opposition to governmental grants of monopoly one finds in Spooner. Even Spooner’s challenge – both in his theoretical writings and in his entrepreneurial practice – to the U.S. postal monopoly contrasts with the Jacksonians’ defense of the postal monopoly as a tool of political patronage.


  • The U.S. Supreme Court’s 2005 case Kelo v. City of New London, upholding the right of local jurisdictions to employ their eminent domain powers on behalf of private developers, has divided libertarians. For some, the Court should have struck down the local statue as a violation of property rights and an illegitimate stretching of the concept of “public use.” For others, the Court should have declined jurisdiction in the interest of federalism and decentralization. Laurence M. Vance falls into the latter camp; in “The Kelo Decision and the Fourteenth Amendment.” Vance argues that the Bill of Rights, including the constitutional restriction on eminent domain, was originally intended to apply only to the Federal government and not to the states, and that, contrary to the doctrine of “incorporation,” nothing in the Fourteenth Amendment is properly interpreted as extending the Bill of Rights to the States. Vance also maintains that our liberties are better protected by decentralization than by centralism; that government has been seizing so much property for so long and for so many purposes at both national and local levels that Kelo can hardly constitute the watershed threat to property rights that its critics have implied; and that the Kelo decision has actually helped the cause of property rights by inspiring a flurry of state-level legislation limiting eminent domain.


  • In “Eminent Domain and Economic Development: The Mill Acts and the Origins of Laissez-Faire Constitutionalism,” David M. Gold takes a less favorable view of Kelo than does Vance (and also, it turns out, a more favorable view of the Jacksonian Democrats than does Krohn). For Gold, Kelo represents the Court’s continuing decline away from the laissez-faire constitutionalism of the Supreme Court’s Lochner era, when local violations of property rights were frequently struck down by the Supreme Court. This laissez-faire constitutionalism has often been interpreted as a defense of wealthy business interests against anti-business legislation; Gold argues, by contrast, that laissez-faire constitutionalism originated in a Jacksonian defense of ordinary people against pro-business legislation – of which the Mill Acts (essentially the exercise of eminent domain on behalf of mill owners) represent a paradigm case.


  • Alexander Tabarrok’s anthology Changing the Guard: Private Prisons and the Control of Crime brings together a number of essays defending the privatization of prisons. In his review, Daniel J. D’Amico praises the collection for the extent to which it breaks with conventional wisdom, but nevertheless finds fault with most of the contributions for their reliance on a social-contract theory of state legitimacy and a confusion of genuine privatization with the mere contracting-out of government services. The chief exception, D’Amico maintains, is Bruce Benson’s chapter, which identifies the aggressive character of the state, and argues that the contracting-out of prison services achieves only technological efficiency, while falling short of the allocative efficiency that actual privatization would bring.


  • The system of customary law which has traditionally prevailed throughout most of Somalia is often viewed as an archaic impediment to legal progress. The late Michael van Notten’s book The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa, completed by Spencer Heath MacCallum, argues that Somali customary law is actually superior to statutory law, and provides a promising basis for a system of prosperous freeports without central government. (See also other recent discussions of Somali statelessness here.) In his review, Norbert Lennartz recommends the book as useful to several different audiences: libertarians and students of law and social science, who can learn about another successful example of stateless legal order; entrepreneurs, who could benefit from the favorable economic climate offered by Somali law; and Somalis, who could usefully implement van Notten’s and MacCallum’s suggestion of clan-owned freeports.

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