Arbitrary Power

by Tom Palmer on June 23, 2006

Executive Order.jpg

Today (Friday, June 23) is the 1 year anniversary of the infamous Kelo decision, in which the U.S. Supreme Court gave its approval to naked theft. To commemorate that anniversary, our Imperator in Chief issued an imperial proclamation that henceforth property rights are to be respected, because he says so. I guess I’m pleased, but an “Executive Order” isn’t much protection from arbitrary exercises of power, is it?

Note: For a serious defense of property rights that’s written in a very accessible and clear style, I strongly recommend Timothy Sandefur’s Cornerstone of Liberty: Property Rights in 21st Century America. Timothy will be speaking at Cato University this year, which is dedicated to the topic of property. He also has a Cato Podcast on “Property Rights After Kelo.” (I should point out that Timothy attended Cato University when an undergraduate.)

Hat tip to Anya and Chris.

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{ 22 comments }

John T. Kennedy June 24, 2006 at 1:46 am

You’re a couple of hundred years late. The Constitution quite clearly announces systematic naked theft, as you know: http://tinyurl.com/apfbn

Sandefur is all for government confiscation of private property as necessary – he endorses eminent domain and taxation.

Tom G. Palmer June 24, 2006 at 2:07 pm

Mr. Kennedy has set up the best as the enemy of the better. I would rather have a tax code that is predictable and imposed on all equally, over one that was unpredictable and arbitrarily imposed. Those are choices we often face. Given the choice between a complex system of taxes that are imposed at the arbitrary will of the holders of power or a low flat tax, I will take the latter. The results of making such a choice are evident in those countries that have done so: an increase of prosperity and also — not to be overlooked — an increase in freedom. As John Locke noted,

“[T]he end of law is not to abolish or restrain, but to preserve and enlarge Freedom: For in all the states of created beings capable of Laws, where there is no Law, there is no Freedom. For Liberty is to be free from restraint and violence from others which cannot be, where there is no Law: But Freedom is not, as we are told, A Liberty for every Man to do what he lists: (For who could be free, when every other Man’s Humour might domineer over him?) But a Liberty to dispose, and order, as he lists, his Persons, Actions, Possessions, and his whole Property, within the Allowance of those Laws under which he is; and therein not to be subject to the arbitrary Will of another, but freely follow his own.” (John Locke, Second Treatise of Government, Chap. VI, Ã?Â??Ã?Â?Ã?§57)

Mr. Kennedy suggests that there is no difference worth considering between an advocate of wholesale theft and confiscation and someone who favors constitutional limitations on takings. Ergo, why bother reading Richard Epstein (a communist, of course, because he favors a limited taking power), or Adam Smith, or Ludwig von Mises, or F. A. Hayek, or Milton Friedman, or J.-B. Say, or Frederic Bastiat — all of them, of course, Red to the core. Or perhaps another approach would be to embrace them as friends of freedom who believe in the assumption of liberty, i.e., that it is not exercises of freedom that need justification, but the restrictions of freedom — the exceptions — that require justification.

Alan Gura June 24, 2006 at 3:41 pm

The executive order is quite weak. It allows takings “for the purpose of benefiting the general public,” which is just about anything. Indeed, that is the very rationale of Kelo.

Moreover,”[t]his order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, entities, officers, employees, or agents, or any other person.”

So it is about as meaningless a piece of paper as Bush could have issued. Absolutely worthless, empty pandering.

Tom G. Palmer June 24, 2006 at 6:13 pm

Arbitrary and meaningless. Par for the course from this administration.

Anonymous June 24, 2006 at 10:06 pm

Kelo’s erasure of Amendment V aside, note that Amendment X enables localities to confer power, by statute, on private institutions that can condemn and possibly assess properties: The state-appointed agent for condemnation of 130 New London properties was the construction firm contracted to build the Pfizer complex. No item in the Constitution grants or defers a power to violate those proprietary liberties expressly preserved in other parts, with exception for (rare) states of emergency.

Perhaps Japanese internment was a missed chance to condemn indefinitely abandoned households, ones which might after all shelter a delapidated hell-raiser across the Pacific– implicitly refuted, yes, in the vain dissents of Korematsu v. US.

This Order obstructs none of the states’ unconstitutional delegations. It’s a pejorative declaration of reforms almost more insulting than the Kelo decision.

John T. Kennedy June 25, 2006 at 12:58 am

Palmer,

“Mr. Kennedy has set up the best as the enemy of the better.”

Why didn’t you say that about Spooner in your review (http://tinyurl.com/hopye) of the Lysander Spooner Reader?

“Mr. Kennedy suggests that there is no difference worth considering between an advocate of wholesale theft and confiscation and someone who favors constitutional limitations on takings.”

Someone might get the impression from reading that passage that you don’t favor takings, but in fact you do favor eminent domain and taxation as necessary, don’t you?

There is a differece worth considering between opposing theft and endorsing it.

The good is the enemy of theft, even retail theft.

Tom G. Palmer June 25, 2006 at 1:54 am

Mr. Kennedy presumes a great deal. I do not favor eminent domain, even if it would make him feel better about himself.

Moreover, I see no reason to mention in every book review I’ve written that I favor what is better over what is worse. I consider Milton Friedman a great friend of liberty, even if he and I would disagree about how far we should go. I even consider Social Democrats to be friends of freedom when they are enemies of National Socialism or Communism and I would make common cause with them to oppose totalitarians.

Even advocates of extreme positions should be in favor of incremental improvements that eliminate some injustice. Enforcing the public use requirement of the Fifth Amendment would reduce the amount of theft and increase security of property and freedom from arbitrary power. I think that would be a good thing.

John T. Kennedy June 25, 2006 at 11:15 am

“Mr. Kennedy presumes a great deal. I do not favor eminent domain,…”

I doubt that, but I’ll take your word for it unitl you contradict it. Conspicuously, you did not deny favoring taxes. Do you favor taxes, and if so how do you then escape the charge of favoring theft?

“Moreover, I see no reason to mention in every book review I’ve written that I favor what is better over what is worse.”

But surely you’d consider it a significant defect in Spooner’s work if he set up the best as the enemy of the better. Did he do so when he flatly rejected all arguments for legitimate authority of the Consitiution?

Impartial Spectator June 25, 2006 at 5:13 pm

What kind of Jerk is this John T. Kennedy? Tom writes “I do not favor eminent domain” and John T. Kennedy says “I doubt it”?? What a weenie. Wait. Let me rephrase that. Make that “What an obnoxious weenie”.

Tom G. Palmer June 25, 2006 at 6:49 pm

Mr. Kennedy’s attitude is not my concern. In any case, the posting is about eminent domain, so at 1:54 am I discussed that. I think that involuntary takings are wrong and under a system of justice can only be justified in extraordinary circumstances, not normal ones. If you break into a mountain cabin during a snow storm in order to survive, you should not be punished. You should, of course, pay to replace the window or the door knob after you’re back in the normal world. That’s an involuntary taking (in this case, breaking), but it does not undermine the principle that under the normal circumstances of justice, as Hume put it, breaking windows to get into cabins is trespass and may be legitimately resisted.

I disagree strongly with those (Murray Rothbard was among them) who insist that no tax is worse than any other tax. That is flatly wrong. Some taxes have such disastrous disincentive effects or violate such important principles of justice (such as that rules should apply equally to all, without regard to race, ethnicity, etc.) that they are worse than others. Thus, I prefer predictable takings to completely unpredictable acts of piracy. I prefer money taxes to forced labor, such as the corvee or feudal services, two kinds of involuntary takings that were replaced by taxes payable in money. (Technically, the feudal service was justified on quasi-contractual terms, but after the first generation that justification lost any power it might have had.) I prefer a flax tax to a complex and arbitrary system of taxes that leaves all in fear that armed men will swoop in and take some or all of their stuff. (That is one reason I favor the spread of the flat tax throughout Eurasia; it reduces the uncertainty-of-tenure disincentive to productive effort and it reduces the justified fear of arbitrary exercises of force.) And in general I prefer a sales tax to an income tax, because the latter licenses the state to demand that one justify one’s income to the state and gives the state tremendous power to manipulate the people. Does that mean I favor taxes? No, but it does mean that I’m not blind. All taxes are instances of illegitimate takings, but some taxes are worse than others.

John T. Kennedy June 25, 2006 at 11:03 pm

Palmer,

So you’re actually an anarchist? Who knew?

Okay, taxes and eminent domain are theft. And in my first comment I pointed out that the Constitution announced systematic naked theft by both of those avenues. Wasn’t I correct in that?

Tom G. Palmer June 25, 2006 at 11:35 pm

I believe that voluntary interactions are better than forced interactions. Anyone has the freedom to call me whatever they want. I do not use that term to describe myself. Most people mean by the term “anarchist” people who don’t favor law, but I do believe in the importance of law, and also in law-governed institutions and organizations that use force to defend against violence. (I still prefer non-violent responses to violence and other forms of bad behavior when that is possible.) I don’t use the term “anarchism” to describe my ideals, because it would be deeply misleading to do so; most people use the term to denote lawlessness and disorder, which is quite far from what I seek. One can always stipulate that one is using a term differently from almost all other users of the term, and in some cases that can be helpful, but such occasions are rare.

I don’t believe that we can do without law or institutions that can use force, but I prefer to diminish force as much as possible.

I favor those institutions that increase the exercise of freedom over what existed before. If moving from piracy to corvee and forced labor and from corvee and forced labor to regular payment of money taxes advances freedom, then I favor all of those transitions. Ultimately, I would prefer for all transfers of goods and services to be on the basis of contract, rather than coercion (or status, in Maine’s famous formulation from “Ancient Law”). We seem to differ in a very important respect: I don’t reject a step along the way that advances us toward my goals, just because it didn’t instantaneously transport us all to the final ideal. In the case at hand, the public use restriction of the Takings Clause of the Fifth Amendment to the U.S. Constitution represented a restriction on involuntary takings. It would be foolish to reject such a restriction because it doesn’t eliminate all involuntary takings.

Charles N. Steele June 26, 2006 at 1:21 am

JTK: What is “systematic naked theft?” If by this you mean “unrestricted plunder,” you are wrong. Unrestricted plunder would be far worse than what the Constitution authorized, or what we have now. We agree that taxation is theft, but it makes no sense to not notice that some forms and levels of taxation are far more objectionable than others.

I don’t understand exactly why some libertarians fail to realize that there can be degrees of objectionableness, or evil, to political orders, and seem to think that any regime with a state is equivalent, but it is strange and self-defeating position. Mostly it appears to be moral posturing with no practical value at all for furthering liberty.

Ironically, a couple of days ago I posted a short essay on my own blog about this subject. (Shameless self-promotion, alas!)

John T. Kennedy June 26, 2006 at 3:30 am

Palmer,

Didn’t the Constitution clearly announce systematic naked theft?

Steele,

“What is “systematic naked theft?””

The Constitution announces that the federal government is going to steal and grants that theft the force of law.

“Unrestricted plunder would be far worse than what the Constitution authorized, or what we have now.”

Tell Plamer, in this entry he says we have naked theft now, under Kelo.

“We agree that taxation is theft, but it makes no sense to not notice that some forms and levels of taxation are far more objectionable than others.”

Where did I say I don’t notice? I said naked theft didn’t start with Kelo, it was fundamental to the Constitution. Isn’t that true?

John T. Kennedy June 26, 2006 at 3:50 am

Palmer,

“All taxes are instances of illegitimate takings, but some taxes are worse than others.”

How then can you endorse massive state undertakings like foreign wars and nation building which are completely financed by theft?

If you believe these undertakings are necessary now then you must also say the theft is necessary now because you can’t have the former without the latter.

If these undertakings are not necessary then you have no business endorsing them while they’re financed out of other people’s pockets.

Tom G. Palmer June 26, 2006 at 5:52 am

Note that with the Constitution’s protections in place (e.g., the public use requirement of the Takings Clause), involuntary takings are less naked (“more clothed,” perhaps) than without those protections. Taking them away is a step toward more theft; retaining them is a restraint on theft.

If by “massive state undertakings like foreign wars and nation building which are completely financed by theft” you mean that I supported the overthrow of the Taliban (I opposed the attack on Saddam Hussein’s regime, but am also opposed to those who have misconstrued the case for peace as being the same as supporting the other side), I believe that doing so was a less bad alternative than not, for the simple reason that not eliminating the base of operations for Osama bin Laden’s Al Qaeda was worse than not doing so. If a state should respond to aggression by neighboring states (e.g., Poland’s state resisting the invasion that resulted from the Hitler/Stalin Pact), they will do so by using tax funds. Being taxed by the Polish state was better than being taxed by the Third Reich or the Soviet Union. Similarly, being taxed by the United States of America and using that money to pay for defense (in this case, giving the Taliban regime an ultimatum and then overthrowing them when they refused to turn over the 9/11 aggressors) is better than being taxed and not using that money for defense. Such calculations don’t seem like rocket science to me.

AL June 26, 2006 at 6:21 am

I think that an implicit premise of Tom’s approach is that statelessness isn’t really on the agenda at the moment and that its silly to pretend that it is. Constitutional — limited — statism does sound better to most libertarians than unconstitutional — unlimited — statism.

John T. Kennedy June 26, 2006 at 12:34 pm

Palmer,

“Similarly, being taxed by the United States of America and using that money to pay for defense (in this case, giving the Taliban regime an ultimatum and then overthrowing them when they refused to turn over the 9/11 aggressors) is better than being taxed and not using that money for defense.”

The war in Afghanistan and nation building in Iraq were not funded as alternatives to other spending, nor was there any real prospect they would be.

Do you favor them even at the cost of increased spending and thus increased theft?

Charles N. Steele June 26, 2006 at 3:03 pm

I said: “We agree that taxation is theft, but it makes no sense to not notice that some forms and levels of taxation are far more objectionable than others.”

JTK replies: “Where did I say I don’t notice? I said naked theft didn’t start with Kelo, it was fundamental to the Constitution. Isn’t that true?”

Correct — and what you aren’t noticing is that some state actions are worse than others.

Also, while I advocate a stateless society — I recognize that the minarchists’ charge that it would be unstable and lead to worse violations of rights than a properly constructed minimal state is an open question — hence much as I dislike (and doubt) the idea, it’s not impossible that some taxation is better for freedom than no taxation.

Also also, as AL points out, the current alternatives we face are not the staus quo vs. the perfect anarcho-capitalist society; simply advocating abolition of the state and an immediate end to taxes isn’t a program for liberty, it’s moral posturing.

John T. Kennedy June 26, 2006 at 10:50 pm

Steele,

“… what you aren’t noticing is that some state actions are worse than others.”

Why do you say I don’t notice?

Pointing out that naked theft was fundamental to the Constitution doesn’t imply that that things couldn’t and didn’t get worse, does it?

Charles N. Steele June 28, 2006 at 5:09 pm

JTK — Kelo expands the power of government to seize property. Your opening comment in this thread suggests that complaints about Kelo are misplaced since theft was part of the Constitution at the start. But it’s precisely this expansion that’s so objectionable. A little limited taxation (“retail theft”) is far superior to vastly expanded powers of government to take property.

If you are already in full agreement with us on this, then what are you arguing about?

(Perhaps your argument is supposed to somehow show that Palmer is actually a statist — a contention that seems very strange and pointless to me.)

John T. Kennedy June 29, 2006 at 4:54 pm

Steele,

Palmer said The Supreme Court gave it’s approval to naked theft *last year*; I pointed out that naked theft was explictit in the Constitution – a point you’ve already conceded.

Naked theft has always been approved by the entire federal government.

Comments on this entry are closed.


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