Libertarian Fail on Fifth Amendment

Richard EpsteinIn the most recent issue of Washington Monthly, Michael O’Donnell wrote, SCOTUS Heads Toward the Cliff. It is ostensibly a review of two books about the Supreme Court — mostly, Damon Root’s Overruled: The Long War for Control of the US Supreme Court. I’ll present a quote from the article tomorrow. Right now, I just want to comment on one thing mentioned in the review as a side note. O’Donnell mentioned Richard Epstein, the “dean of judicial libertarians” — who Root apparently talks about with much admiration. But Epstein has a curious take on the Fifth Amendment of the Constitution. According to him, the government doesn’t just have to pay for land they take away from a citizen, “It also owes a business money if its regulations have the effect of ‘taking’ the business’ profits.”

By this theory, if the government enacted a law that banned the use of lead in gasoline, the oil companies would have to be paid not only for the cost of doing so but for any related loss in sales because, for example, people used less gasoline because their cars didn’t run as well with unleaded gas. This would effectively tie the hands of the government. As a practical matter, the government would never be able to regulate anything at all. And that, of course, is the point. That’s the point of “judicial libertarianism”: to tie the hands of democracy so that the public sector has no power to do anything.

This is a ridiculous theory. Consider a similar situation in which property rights are set like a fly in amber: the invention of flying. In the distant past, it was generally accepted that the space above your property was your own. The government had no right to tell you that you couldn’t shoot birds that flew over your property. But then planes came in. People were flying over private property. Sound silly? Maybe so, but there was a court case where a farmer sued to stop planes from flying in his air space. Because the aircraft industry had a lot more political power than the farmer, the courts found the way they almost always do: for the powerful. And as a result, air traffic is a common thing.

But not according to Epstein. Or rather, it wouldn’t have been according to Epstein a century ago. Now, I’m fairly sure, he would make some argument about how property rights have a limit in their vertical extent. But there is nothing obvious about that. I doubt very seriously that 19th century farmers would have liked the idea that they only owned a finite box of air. And like all libertarian thought, this idea starts to rattle apart with the slightest of pressure from practical implementations.

Think about what would have happened if the courts had claimed that airplanes couldn’t fly over private property without permission. The airplanes would have ignored the laws. The private property owners would have then had to sue the owners. But how would they have known what airplane violated their property rights? And even if they did, they would have to hunt down the owners and then start legal procedures. That would be pretty hard if the plane belonged to a foreign corporation. And what if a hundred planes flew over? A hundred lawsuits? In the end, the property owner would just give up in frustration. So much for your property rights!

But let’s go back to the leaded gas example. It is more complicated than I just said. Leaded gas is highly toxic; it makes people stupid. Every seller of gas should be culpable for the damage done by the lead that is poisoning society. But in Epstein’s world, the government couldn’t stop them. So every person who was harmed would have to sue every oil company. And that would be hard because it is pretty much impossible to show individual damages, even when it is trivial to show collective damages. And what about the secondary effect of lead: a more violent society. Should people knifed in the park be able to sue?

The situation clearly gets out of hand quickly. And this is why we do allow the government to regulate. Libertarianism may have an impressive simplicity in theory, but it always becomes ridiculously complex in practice. Consider just what a mess it would be if all the roads were owned by various people and we all had to pay tolls on them all. Now compare that to the very simple alternative of public roads funded by gas taxes. Gas use is correlated with road use. It’s a wonderful, simple solution. But it is unacceptable to libertarians because it doesn’t fit into their theory.

Libertarians live in a fantasy land in most of their thinking, but they are most delusional when it comes to the judicial system. They claim that the government can’t do anything right, yet it is going to have a perfect judicial system. Or maybe it is going to be a private system that somehow won’t be corrupted by money. It’s just madness. O’Donnell started a sentence with, “Libertarianism, so principled, so carefully thought out, does not appear to have grappled with…” But you could put anything that is concrete at the end of that. It hasn’t grappled with the real world consequences of anything. Why people take it seriously is beyond me.

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About Frank Moraes

Frank Moraes is a freelance writer and editor online and in print. He is educated as a scientist with a PhD in Atmospheric Physics. He has worked in climate science, remote sensing, throughout the computer industry, and as a college physics instructor. Find out more at About Frank Moraes.

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