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Epstein and Welch on Eminent Domain

Here are two libertarian criticisms of the Supreme Court's Kelo eminent domain decision, each of which scores some useful points, but each of which involves some instructive mistakes. Both the scored points and the mistakes go some way toward explaining how we've gotten to the current predicament.

This succinct piece by Richard Epstein admirably summarizes the case against Kelo-style eminent domain. But it raises a problematic question that Epstein neither acknowledges nor answers. Epstein is a utilitarian in ethics and perforce (whether he admits or not) committed to the principle that rights have to be violated on those occasions when their violation would better promote social utility. How can he defend strict property rights against what is essentially a textbook utilitarian argument for violating them? Like it or not, I don't think he can.

This essay by Matt Welch in Reason magazine makes a devastating case against the special pleading engaged in by Kelo's defenders--most prominently including The New York Times, a brazenly greedy beneficiary of eminent domain abuse.

Unfortunately, Welch ends what is otherwise an excellent piece with a criticism that simply makes no sense: he takes the Left to task for failing to personalize injustice. But the Left personalizes injustice all the time: the stock-in-trade of left polemics is precisely the individual suffering the ravages of untrammeled capitalism (homeless, jobless, without health insurance, etc.) Individualized misery is standardly thought to be a refutation of just about anything.

The best evidence of this comes from the covers of British news magazines like The New Statesman, whose editors seem to think that you can indict a whole country if you put a desperate American face on the cover. The Sept. 12 New Statesman has a crying child next to the headline: "Why America can't cope." As any feeling, compassionate person would know, a crying child proves that America can't cope. Right? Never mind.

September's The Spectator, on a lower budget, has a lurid drawing on its cover depicting a screaming woman, a looter, and a menacing National Guardsman, with the caption: "What's Wrong with America?"--for which answer they fatuously turn to Patrick Buchanan. (But it makes sense in a way: Patrick Buchanan is what's wrong with America.) Not to be outdone, Newsweek for Sept. 19 has us looking directly into the eyes of a small child with the headline: "Why Bush Failed--Children of the Storm; Poverty, Race and Katrina: Lessons of a National Shame." If that isn't personalizing injustice, I don't know what is.

The case against eminent domain is not primarily an emotive one based on the heart-breaking plight of this or that suffering individual or family. Any policy can produce that. The case against it is based on an abstract principle--rights--and is lost if it isn't made in the right way. For all of his eloquence, Welch's criticism doesn't make it in quite the right way, and so ends up undermining the point he really needs to make.

That, I think, is a general problem with libertarian criticisms of eminent domain, and with libertarianism generally. Libertarian arguments make a lot of the right points, but never in quite the right way. We've gotten to where we on the eminent domain issue, I think, as much by virtue of libertarianism's successes as of its failures.