Our debaters today are Professor Richard Epstein and Dr. Walter Block.
Both men have a long list of achievements, but I will only introduce them briefly so we can get right to our debate.
Professor Richard Epstein, as most of you know, is a professor of law here at the University of Chicago
and one of the world's foremost classical liberal scholars.
He's the author of numerous books, including a highly influential book on the topic we are discussing here today
called Takings, Private Property and the Power of Eminent Domain.
Professor Walter Block is a professor of economics at Loyola University, New Orleans and a leader
of today's Austrian School of Economics. He is an outspoken critic of the Chicago School
of Economics and is also the author of the provocative book, Defending the Undefendable,
The Pimp, Prostitute, Scab, Slumlord, Libeler, Money Lender and Other Scapegoats in the Rogues
Gallery of American Society. The topic of our debate today is, do we really need eminent
domain? Professor Epstein will argue that we do and Dr. Block will argue that we do
Dr. Block will go first, and Dr. Block, you may begin.
I have a very weak voice. Can you hear me in the back?
Is there a microphone in the room?
No microphone. If you can't hear me and you want to hear me, you should move forward.
If you don't want to hear me, you can stay back there.
So please feel free to come forward at any time if you can hear me.
Usually a debate is a sort of a thing where there's blood on the floor, and in this case it'll probably be professorial blood on the floor, which students always like to see.
I hate to disappoint you, but I think there will be less blood on the floor than otherwise, because I do agree with Richard in some conditions or under certain circumstances that eminent domain is justified,
and I'll have more to say about that as I go on, but there'll be some blood because we do have some disagreements.
Do you know the difference between a living room and a bathroom?
The joke is if you say no, I say, don't come to my house.
Well, the analog joke is, do you know the difference between coercion and voluntary agreement?
between using initiating force against innocent people and consent and if you
don't know the difference between those two things I say don't get into political
economy and this is political economy now I admit that Richard does know this
difference and he is an impassioned defender of it however he does have some
caveats he says that there are certain things that can trump this namely non
coercion good coercion bad for example necessity public good hold out
free rider, whereas in my case nothing trumps that. I'm sort of rabid on this
issue. The non-aggression axiom is the essence of libertarianism and I brook no
disagreement with it in my philosophy. So it's okay within a condominium
development or a restrictive covenant or where there's some sort of consent. So now
the question comes, well what about outside of a condominium development?
Suppose we're now talking about out there. Somebody wants to widen a road or
So to me the issue comes, is the US government an agreed upon thing? Is it a club? We're all part of this club called USA and if so then we've agreed to whatever the majority wants and presumably eminent domain could be one of the things that they do and that would be fine.
Now my claim is that consent can turn a legal bad into a legal good. For example, assault can turn a, rather in assault, consent can turn what is a mugging into boxing.
We don't put boxes in jail even though what they do is punch each other and in other contexts we would put them in jail, but since they both consented to punch and be punched above the belt, it turns from a legal bad into a legal good.
Similarly, with sex, consent turns rape into seduction.
Now, rape and seduction might look exactly the same way.
The woman who is being raped might not protest,
like if there's a threat that the rapist will kill her baby in the next room,
if she doesn't get into it.
So you might not be able to tell whether it's rape or seduction,
but surely her consent is crucial.
With it, it's seduction. Without it, it's rape.
What about an eminent domain?
Well, if there's consent, then eminent domain is justified.
In the development, you had to have every house painted the same color.
You couldn't have a picket fence because the fences were in a different style.
Now, if in a condominium development they had an agreement
to be bound by whatever the majority wanted within certain limits,
and if in that condominium development they wanted to widen the road
and take away somebody's front lawn or whatever it is,
then since you consented to the condominium development,
You, therefore, consented to the whole kit and caboodle and I think that eminent domain is justified and it's a fine policy like any other policy that's based on agreement.
Okay. Here's where the blood gets on the floor. I believe that the U.S. government is not a voluntary organization.
And I claim that if Richard is to argue logically and be consistent with libertarianism, which he may or may not be, he would have to argue that it is.
So I turn to arguments from authority, which is a reasonable way to start, and here's a quote from Schumpeter.
The theory which construes taxes on the analogy of club dues or of the purchase of the services of, say, a doctor,
only proves how far removed this part of the social science is from scientific habits of mind, unquote.
So the U.S. government isn't a voluntary club. Here's another one from Franz Oppenheimer.
There are two fundamentally opposed means whereby man, requiring sustenance, is impelled to obtain the necessary means for satisfying his desires.
These are work and robbery, one's own labor and the forcible appropriation of the labor of others.
I call one's own labor and the exchange of one's own labor for the labor of others the economic means.
While the unrequited appropriation, or I would add, required appropriation too, of the labor of others would be called the political means.
The state is the organization of the political means, and the state is death.
Let's go back to the initiation or the creation of this group called the United States of America.
And suppose we're in the wilds of Western Pennsylvania somewhere in 1776, and the tax collector comes to Mr. Jones.
He says, hey, Mr. Jones, guess what? We started this group called the United States of America.
And Jones says, oh, that's nice. I wish you the best of luck. We'll be good neighbors.
You know, I always get along with my neighbors and I'll get along with you all.
And the tax clerk says, well, you don't understand.
You've got to be part of this group.
And Joan says, what? I have to be part of the group? I don't want to. I'm not a joiner.
I don't like joining groups.
I don't want to join the group. I'll be peaceable. I won't attack you if you don't attack me.
And the tax clerk says, you don't understand. You've got to be.
This is not a voluntary thing. This is a course of thing.
Now, I put it to you that that's a moral outrage, that's disgusting, that's despicable, to go to an innocent person and threaten to use force against them when he has not done anything of the sort initially.
Well, here's a quote from my colleague and debating partner, Richard, who says in his recent interview,
No government at all? A large society with no central authority offers an open invitation to some sleazy individual to consolidate power in his own name.
Constitutional government uses deliberation. Anarchists void at the Senate promotes totalitarian rule, not individual liberty."
Well, I think this is wrong on many different levels.
First level, if we're worrying about totalitarians and sleazy individuals,
We have to realize that monopoly usually gets us a worse product than competition.
The reason we have reasonably good ties and wristwatches and shirts and stuff like that and pretzels
is because we have competition.
If somebody makes a lousy pretzel, Richard won't eat that pretzel, and that pretzel place goes broke.
Whereas if they make a good pretzel, like Ryder's pretzels, which I'm sure is a good pretzel,
he'll go back and buy more pretzels from them.
But it's the same thing in watching out for bad guys, collecting, you know, imprisoning and capturing guys.
Why should it be different? Why should it be true, one thing, for pretzels and shirts and ties and wristwatches,
namely competition brings about a better product because it weeds out inefficient providers of the service?
Why should that be true, as it is true, and I'm sure he would agree that it is true,
why should it also be true in everything, including capturing bad guys?
One indication of what the Federals are doing is they're creating more crime than they're solving.
I think three-quarters of the people who are now in jail are in jail for drug crimes,
which would be a victimless crime, and under a libertarian society there'd be no such thing anyway.
Another argument is the following analogy.
What Richard is saying, if I understand him correctly, is that if it's just a bunch of us individuals,
we need a national government over us because we're likely to run amok and rape each other and kill each other,
and the market can't be relied upon to stop it, so we need a government.
Okay. My analogy is national government is to individuals as world government is to national governments.
Notice that the countries of the world are in a state of anarchy with regard to each other.
There is no UN, there is not now a world government.
So the country of Canada and the country of Venezuela are in a state of anarchy with regard to each other,
to each other, just as I am with regard to Dan, if we didn't have a national government.
So what Richard's argument comes down to, if you take it to its logical conclusion and
where else can you take it, where else are we justified in taking it, is that it advocates
world government.
Because remember, if national government is justified because there's no overarching
person over the locals, well then so is world government because there's no overarching
government over the nations.
But there are problems here. If we had a world government, India and China would run the place.
There'd be no place to run to. But this is mere consequentialism, unworthy almost of even mention.
Because we're interested in principle and justice. And the principle and the justice is that it's wrong to initiate violence against people.
It's wrong to get them to force them to join clubs. If you force them to join a club, it's not a club.
So, the August view of Richard I think is problematic. Another point is that government implies no secession, but no secession implies slavery.
Look, the only thing wrong with slavery is you couldn't quit. If you could quit, it'd be no problem.
You know, you pick cotton and you sing a song and then the guy pulls out the whip and you say, hey, wait, I quit.
And he says, no, you can't secede. You can't secede that slavery.
We southerners still resent the war of northern aggression.
People in Chechnya have every right to leave Russia.
People in Taiwan have a right to be free of their Chinese masters.
The two-country solution, Israel and Palestine, is justified.
But if it's justified to leave en masse, it's also justified to leave a state at a time,
or a city at a time, or a family at a time, or an individual at a time.
But if an individual can leave and keep his property,
not just leave, but leave and keep his property,
As the guy in Western Pennsylvania wanted to keep his property,
when the tax collector said, you know, you can leave, but you can't keep your property,
the guy said, well, that's land theft.
Well, if you can leave, then that's anarchism, or free market anarchism.
Government defense. Is government necessary for defense?
Well, it seems to me to be like a protection racket.
A protection racket, the mafioso comes and says, look, I'll protect you, pay me money.
The guy says, oh, that's okay, I don't need protection.
He says, you don't understand. You pay me, and then I'll protect you.
And I'll make you pay even if I don't protect you, if you're a pacifist and you don't want to be protected.
The point is that there's no unanimity in the government.
What about the poor pacifist?
I defy anyone to tell me the difference, apart from great PR,
between the United States government and a mafioso hooligan gang.
It's the same thing. There's no difference.
Paradox.
Outside the condo,
In the real world out there, eminent domain takings of appropriation are not needed.
Take the holdout problem.
You're thinking of building a road from New Orleans to Chicago.
And you want to build a road and all of a sudden some guy, Hubert over here, owns property right in the middle
and he says, you know, haha, I'm not selling for anything, and you can't build the road.
That's the argument of the, what shall I call them, I said I'd be nice,
People who, the statists, who care?
Thanks, thanks.
I need all the help I can get on this.
Well, there are various ways to deal with that.
One way is if this is New Orleans and this is Chicago,
you could build a road this way,
but you could also build it here.
You could build it here, you could build it here,
you could build it here, you could build it here,
where these are just a half mile away from each other.
And if you get a hold out over here,
you just go to some other route.
That's one way to deal with it. Another way to deal with this is you tunnel under this guy's land.
We don't believe in ad colon, the ad colon doctrine. Here's the world.
The ad colon doctrine says if you have a square mile here, you own a cone down to the center of the earth and then up toward the heavens.
That's the ad colon doctrine. That's nonsense for libertarians. Libertarians believe in homesteading.
Homesteading, and since nobody homesteaded 100 feet underneath his house, if 100 feet
is sufficient to tunnel under, well you can build a tunnel piece other places.
Did you ever see a city block where the whole thing, except for this little bit of a corner
is a high-rise and over here you have a little cottage, did you ever see that?
It showed that the negotiations didn't succeed.
You won't find that in the Soviet Union.
This is a testimony to the virtues and the freedom of capitalism and free enterprise,
namely that sometimes people don't make deals, even though people who believe in making interpersonal
capacity utilities think that this land should have been one complete building.
I say that that's a magnificent example of the operation of the free enterprise system.
Here's a quote from Richard,
Low-level frauds use to mislead sellers about buyers' intentions.
Namely, another way to get around here is what you do is you don't buy land, but rather you buy options.
You buy options to buy land.
The land over here might be worth, say, $10,000.
You pay the guy $100 to say, look, I'll give you $100, you keep it, and if I want, I can then exercise the option to buy the land.
Well, if you have that and you buy options all over the place, relatively cheaply,
and then if you get one hold out, you just go to a different route.
Well, what he says, Richard, if I understand him correctly, low-level frauds,
it means that if you buy an option and you don't tell the person what you're trying to do,
you're guilty of fraud, but I think that this is mistaken.
I don't think it's fraudulent.
Another point, roads were originally privately owned.
So much for the need for eminent domain, and by the way, now that they're run by government, they kill 40,000 people a year.
Fair compensation.
A robber comes up to me, and he steals a hundred bucks, and he's a philosophical robber, so he's willing to argue with me, and I say,
well, this is unfair. You stole a hundred bucks from me. He says, oh, it's the tut-tut. Here's a piece of chalk.
Compensation.
Well, how can it be fair compensation unless I agree? Remember, the key is consent, not
Giving Compensation.
Well, I have a little bit more, but I think I'm out of time, so I'll hold off until I get my extra five minutes. Thank you.
Well, Walter, you always make for an interesting conversation.
Let me see where I would begin.
First of all, the question here is not whether we think that the distinction between coercion and consent has no traction.
Clearly, if you're trying to figure out how you organize any kind of society, just or otherwise,
a system which has entirely rests on coercive arrangements will in fact be the gulag and we all ought to deplore it.
The issue, however, is whether or not the distinction between consent and coercion is so absolute
That one would say that whenever there is consent, the transaction ought to be blessed.
Whenever it turns out that there is coercion, the transaction ought to be damned.
And the difference between the strong and hardy libertarian, such as Walter,
and the more moderate and restrained classical libertarian, such as myself,
is that we believe that this is a presumption, but we do not believe that it is an absolute.
And the question is, what counts as a reason for the exception,
and how is it that we can implement them into practice.
Well, it turns out that if you start looking at the consent side of the situation,
there are of course ways in which it could be undermined.
One of the examples that Walter gave, which I didn't think came out quite right,
was he said that if you use force against a woman, it turns out to be coercion and rape,
but if you don't use force, it turns out to be seduction.
I was waiting to hear a word like love and genuine passion coming out of that because
seduction itself has strong negative connotations and in fact the reason for those connotations
is that there are transactions that are induced by various forms of fraud and the question
under these circumstances is whether or not the fraud will negate the voluntariness of
the particular arrangement.
Within the standard framework of a libertarian analysis the answer I think should be yes
At least if the principle which is involved is one which says that the cardinal sins of all individuals are force and fraud, although you'll note in the way in which Walter put the point, he did not actually condemn in so many words fraud, he said that the fundamental principle was that of non-aggression, which seems to speak only to the use of physical violence and doesn't seem to use to deal with such things as non-disclosure or outright lying. So one of the problems that you should immediately be aware of is within the libertarian framework.
There is, in fact, some kind of a debate as to whether or not the frauds that you're talking about should be covered under the prohibition,
or whether or not it's just naked force is the only kind of action which should be regarded as though it were a wrong.
Now it turns out in dealing with this consent situation, at least within the context of government,
there is also another very large body of law out there which is extremely important,
In the book, which says that there are certain times when you hold a resource in which the consents that you obtain are not going to be valid.
So, for example, if the government were to own the highways and it says that the only time that we will allow you on the roads is if you agree to waive all your rights for the compensation of property that's taken for you in an independent action,
Most of us would say, and I think intuitively we'd be correct, that the conditioned effort of the consent doesn't work within the standard libertarian framework if you have the power to withhold something absolutely, or the power to grant it absolutely, you have the power to grant it subject to a condition or not.
And the reason why the conventional analysis is so dubious about that syllogism is that it is deeply worried in all of these cases about the problem of monopoly and coordination.
and the reason why in effect most classical liberals are not libertarians is they think that the nature of the social problem is not just to minimize the danger of fraud, rather a force in fraud, but also to minimize the dangers associated with very serious coordination problems of which Walter I think makes too light of, which also stand in the way of human happiness and success.
Success. And in the case that we were just talking about, here I think the usual rule is that no matter how much any individual wants to consent to the waiver of these particular constitutional rights, in virtue of the fact that the conditions involved have nothing to do with the safe operation of the roads, but rather are designed to extend government or any other kind of power, we would not allow them. And it's interestingly enough that even if you were dealing with private roads and they had monopoly positions and people start to impose the same kinds of
of Constraints, you would find long before the rise of the New Deal that the restraints on various kinds of charges that could be imposed by monopolists were sufficiently large that all of these collateral consequences would be knocked out as well.
In other words, the doctrine of unconstitutional conditions often applies to government actions because there are state monopolies, but to the extent that there are any form of private monopolies, there is also exactly the same concern with this kind of a counterweight.
So, if you're going to look at the issue of consent, you ought not to treat it as non-problematic and as self-evidently understood as I think it's been put there.
There are certain very important limitations that have to be accepted with respect to the operation of that particular doctrine.
Now, when you start to talk about the use of force and coercion or the threat of force, similar kinds of ambiguities are also going to arise.
There is no doubt that ordinary aggression by individuals against other individuals counts as a kind of a wrong.
It is also no doubt that there are immense problems in trying to figure out when there is an altercation between two or more individuals
who is the initial aggressor and who happened to use force in some form of self-defense.
The uncertainty with respect to the application of the principle in the individual case
is what led every serious political thinker from Hobbes and Locke and so forth
to the conclusion that self-help and self-judgment was not a reliable way in which to organize a political society
and that there had to be some way in which you could get a neutral third party on top of you
so as to be able to introduce some degree of impartiality with respect to the resolution of these kinds of disputes.
And one could hope in many cases that you would be able to do this by some kind of a consensual arrangement,
But generally speaking, as the numbers get larger, the likelihood that you'll get uniform consent within the group is, in fact, much more difficult.
And indeed, if you start looking at this fellow in western Pennsylvania, it may well be that he says,
Well, you know, I'm a perfectly peaceable guy, and if you are a good neighbor to me, oh United States, I'll be a good neighbor to you.
But suppose it turns out that he's lying.
Well, now, in effect, you have the whole question of anticipatory self-defense.
Do you attack him before he attacks you?
Do you have to wait and so forth?
And generally speaking, when you're trying to work out these kinds of political arrangements,
where there are huge numbers of individuals,
you cannot, in effect, try to handle the coordination problem by having a cheese box situation,
where the effective scope of sovereignty turns out to be the boundary lines of Farmer Jones' world.
Walt is quite right to say that competition in marketplaces clearly dominates government coercion and monopoly,
But there is no way that these wonderful principles would have been able to reach our vending machines unless they had a system of public roads over which they could travel and it turns out that there is no way that the seller would have been able to get them there unless there had been some modicum of social order which generally speaking a well-organized state would have been able to achieve. So if you're trying to understand what the eminent domain power is about what it says in effect is that the coordination problems that we have in keeping
and individuals together in assembling roads for highways are very, very serious and there's nothing that we can do to avoid them.
Now, Walter tries to do this by giving you a series of arguments, both of which I think turn out to be wrong.
One is a practical matter and one is a doctrinal matter.
If the question, for example, is what do you take when you take the surface of the earth,
Walter has to argue against the entire history of both Roman and common law when he says,
says, not the ad coelum, that's going up, but the ad imperos, which is going down, doctor,
both of these things are wrong, and that it turns out that when you take the surface of
the earth, you have only taken the surface of the earth.
This of course has been uniformly rejected for all sorts of very clever and sensible
reasons.
Does a person who is four feet tall only manage to get up to six feet high with respect to
this land, whereas somebody who is six feet tall gets eight feet?
Can you in fact claim by building upward and get higher space, or can somebody who has occupied the land over you, next to you cantilever over your property so as to pretend the building from taking place?
Every serious property lawyer has thought about this, has said that the trick in a system of possession is to make sure that you require as little as possible, not as much as possible, to allow people to manage to generate ownership claims over particular physical objects.
And so taking the surface runs in both directions precisely because it eliminates the incredible problems that would arise if subsequent strategic actions would allow you to go on top or below the land.
One of the most famous cases in the takings law, a case called Mahan against the coal company, had to do with the problem was when you start digging out coal underneath the surface and the surface starts falling in,
The question is whether or not there is some form of subsistence, if in fact you want to create easements by contract, which allow people to dig without support rights, that's just fine.
But to argue that when you take the surface, you don't get the subsurface, means that anyone can borrow under you and your land will start to go down.
What you've done in effect is save the libertarian theory against the holdout problem by creating an impossible original delineation of rights,
which makes it impossible for anybody to get productive labor out of his own land.
It's not a trade, I think, that anybody would want to make with respect to these sorts of cases.
And the second problem, of course, that one has is suppose you give this rather odd definition of property rights, much narrower, mind you.
The libertarian definition, as he puts it, is much narrower and much weaker than the traditional definition of property rights.
Well, suppose you do that, we get this wonderful illustration about, well, there are lots of different ways to get from New Orleans back to Chicago.
Of course, when you're trying to build a highway, you're not just trying to build a one-way road from two cities.
You have, in effect, the sensible idea that you might want to stop at Memphis along the way, or maybe Springfield or St. Louis.
Look at the routes which are taken by all the interstate highways that are built inside the United States.
And once you start adding those constraints in there, it seems pretty clear that this particular scenario of private voluntary transactions with or without options is just going to fail in the way in which you put these roads to travel.
It needs, roughly speaking, probably a hundred thousand landowners from whom you would have to assemble tracks in order to build by any one of these routes between any of these two places.
If you can announce that there are only six or eight alternative routes that you can have,
each one of which could be blocked by one landowner under the circumstances,
you just need to have a rate of non-compliance under these circumstances of well under one-tenth of one percent
in order to throw the entire system of interstate highways into a shambles.
And at that particular point in time, the holdout problem turns out to be very, very devastating.
We know this empirically because, for example, when we look at the holdout problems associated with small surface plots of land, which are over large pools of oil, where in fact cooperation amongst the surface holders would allow you to increase, relative to non-cooperation, the yields from these pools by five or tenfold, the empirical evidence that's been gathered is once you get more than four or five people on the surface who have to coordinate their activities with respect to the pools below, you never come up with a solution.
So that's what's wrong. The question is, how do these examples start to tell us what's profoundly wrong with Walter's version of the libertarian state?
And the answer comes, I think, in one proposition. It's that you don't want to treat this sort of consequentialism with the sort of easy dismissive attitude that he did under the circumstances of these particular cases.
If you are looking at the nature of various kinds of human actions which involve the use of coercion, we know enough about human motivation that nobody, even a pervert, will engage in coercive actions against some other individual unless he thinks that there is some kind of return benefit for himself.
The core of good sense with respect to the libertarian position is that generally speaking, if we're involved in ordinary individual actions of aggression, we know that there's going to be a fundamental misbalance between the benefits and the harms of coercive behavior.
If I start hauling off at Hubert, he's going to be a systematic loser. I may turn out to be a winner, but we also know, A, I'm not going to compensate him so as to let us know whether or not my gains are greater than his loss,
and his laws, and two, we know empirically, even when compensation is not possible, that
if I kill that guy in order to make my life a little bit more pleasant for a day, we are
willing to do what Walter says we can't do, make interpersonal comparisons of utility.
I dare say there is none of us who would think, for example, in the rape case, that a happy
ten minutes for a guy is sufficient utility to justify a life of shame, degradation, physical
We make interpersonal comparisons of utilities in those cases, and if you put it at that kind of an extreme, I don't think there's anybody who is thinking about this with the slightest bit of detachment who would say that that kind of global judgment turns out to be wrong.
So what is it about the eminent domain case or the taxation case that starts to distinguish this from the straight coercion case that Walter talks about?
And the answer is that the distribution of benefits that you get from the proper use of certain kinds of government powers
relative to the distribution of benefits that you get from private uses of coercion and murder and rape cases is so fundamentally different.
In that little exchange in Reason magazine to which Walter referred, I said that the reason this hard libertarian principle is wrong is because it systematically and absolutely and in all cases precludes the use of centralized force by a government under those kinds of circumstances in which there turns out to be a net benefit for the individuals who in fact are subject to the coercion in question. And if you go back for example to the oil and gas pool that I
by referred to a moment ago. That's exactly the way in which the system starts to work.
What happens is by telling each of these characters that you may put, for example, one and only one well on your property,
each of them is being coerced in the sense that they're being limited on what they can do,
but each of them benefits from the parallel coercion that is imposed upon the other persons who own land over the pool.
So the person who is coerced now finds that his production goes down by 10% because he can't have those other 40 wells on his land,
but then in effect he finds out that it shoots up by a far greater number by virtue of the like restrictions that are imposed upon the property of other individuals.
And to the libertarian of the hard variety, the only question you start to ask is whether or not there is or is not coercion involved in the transaction.
So the classical liberal of which I turn out to be a part, that tradition of which I turn out to be a part, you ask another question, which is whether or not if we move from a regime of non-coercion to one of coercion, can we say that we've created a situation in which all the individuals have been improved to some extent in virtue of the state interaction?
It was exactly that kind of a logic which led people looking at the inconveniences associated with the state of nature to introduce a form of social contract theory to explain how it was that you justified the state.
And it seems to me that this is really a very important situation.
Now, in dealing with this, let me just mention two other points if I have time.
One of them is that the eminent domain principles I have quoted folk as one which talks about how it is that the use of state force in all of its forms is justified against sovereign individuals only to the extent that it provides them with a net benefit greater than the coercion involved is in fact a position which has been systematically repudiated everywhere in the United States in the free world in favor of much larger versions of state power. When I wrote my Takings book,
I was not, for the most part, attacked as a maniac by people who stood on the right and insisted that I was giving much too much concession to state power.
I was attacked as a madman and worse because, in effect, I said that if you follow these principles, you can get pretty strong evidence that virtually every major social welfare reform that had been introduced under the New Deal had, in fact, become flatly unconstitutional.
That is, this is not a position which is toothless against the arguments associated with government taxes.
Now, how does it work?
Well, to some extent, what happens is it does rely on a lot of private analogies and tries to push them a little bit further.
For example, if you go back and you read such large government activists as Adam Smith,
they do use the partnership example in trying to explain why it is that a flat tax ought to be preferred over a progressive tax.
And the argument was, in a partnership, all individuals have to contribute in proportion to their share of the gains, their fraction of the cost, and that principle of proportionality becomes a useful rule of thumb to figure out how it is that you would organize some kind of a public state.
And if you realize in effect that once you eliminate one major source of redistribution and coercion by flattening the tax and eliminating various scopes of government and behavior, what happens is you can have an eminent domain power which doesn't lead itself to massive forms of abuse but in fact can be quite closely tracked if only you had a government that cared to do it.
And the last point that I want to mention is that you have to here be very much aware of questions of scale.
I am, in effect, very much worried about the problems that are associated with world government,
precisely because I think at that point the monopolistic tendencies of these states,
if they follow the patterns of the Economic Union, for example, will be utterly disastrous.
But the big difference between governments and individuals is it's very difficult to imagine any kind of stable situation
If you have hundreds of thousands of people in very close proximity to one another without a common authority, whereas if you have a much smaller number of government players with determinate territories under their separate controls, the point is you can get that form of stability, sometimes because of a mutual acknowledgement of the gains from trade exceed the burdens associated with it, and sometimes from the simple proposition that it turns out that defensive positions require less to maintain themselves than offensive positions require to maintain themselves.
to Overrun. But the argument here is not that we're in favor of the current system of separate nation-states because it's perfect.
Any system, whether it be monopoly or private, is going to have to figure out how you minimize costs under different forms of uncertainty.
And what we can say with some degree of confidence, and I will end on this note, is that within the domestic political realm, a limited government will do better than no government,
world government, even if we are confident that when we're worried about the potential
source of abuses in the international world, that a comprehensive world government is likely
to do more abuse than a system of well-run national governments.
I don't think there's anything wrong with seduction.
Part of seduction is taking a shower or wearing a nice suit of clothes.
I don't think it's fraudulent to try to seduce someone.
I don't think that non-disclosure is necessary.
If you have to disclose, that's a positive obligation, and libertarians, or at least the
strict libertarians that I represent, don't favor that.
With regard to monopoly, there is no such thing as a private monopoly.
There can only be a public monopoly.
Monopoly is a grant of privilege based on coercion.
There is no such thing as a private monopoly.
When I did my material on roads,
I made the point that right now when you buy a house,
what you do is you get title insurance
to make sure that you are the real owner of it.
Under a regime of private roads,
you'd have to get access insurance,
mainly that you can get in and out of the road
and not have to become a pole vaulter or get a helicopter.
The point is that the road owner
would contractually obligate himself
not to pull that sort of stuff on you
because he wants you to buy the house that is near his road.
The next point is that I don't think public roads
are necessary for pretzel delivery.
We've had private roads long before we had public roads.
The initial roads were turnpike roads.
They were all done privately,
and I don't see why you couldn't have private roads today.
Now, I think Richard is misunderstanding
the ad colon doctrine.
If you have a cave-in,
obviously you're building too close to the surface.
That would be a violation of the surface guy's private property rights.
But if you, let's say it was just stone or rock all the way down and if you left him 50 feet, there would never be a cave in.
Why does he own it? He didn't homestead it and if you believe in first possession, this is incompatible with first possession.
So this gets rid of all the oil well problems. The guy on the surface didn't do squat with the oil.
So the first guy that discovered that oil lake, he's the only owner and anyone else putting a pipe down to the oil is stealing his oil.
So there's only one guy. You don't need any coordination.
With regard to stability, the stability that we now have, according to, according to Rudy J. Rummel, in the 20th century, this wonderful system,
Well, I won't say wonderful system, because Richard didn't say wonderful, he just said imperfect.
But this imperfect system of statism, international statism, was guilty,
or you might say that 170 million people died as a result of it, on their watch.
And that is not the wars. This is apart from wars. This is just states killing their own people.
170 million of them, and many, many more millions died the other way.
Richard, in his taking book, has two pies, and he says, here's a small pie without the government, and here's a much bigger pie with government.
I would reverse it and say that when the government comes on, the pie shrinks because coercion is created.
It seems to me that there's a lack of sense of a proportion here.
The State has been one of the institutions that killed more people than anyone else.
Robber gangs don't come close, rapists don't come close, and he is embracing this evil
institution in order to make it easier to get roadways done. I don't think that that's
justified at all. He ignored my challenge about telling me the difference between a
government and a mafia or a protection racket and a government. Maybe he'll answer that
later. I don't like this idea of anticipatory self-defense. It seems that that's what the
U.S. is doing now. We have several hundred military bases in every country known to man
and some unknown to man. Some countries haven't even been discovered. I'm just kidding here.
We've got military bases there too. There's an awful lot of anticipatory self-defense.
How about waiting until we see the whites of their eyes? Boy, the time goes fast when
Having fun.
He also has this idea of necessity, that necessity justifies all sorts of violations of private property.
Well, I put it to him right now that there is necessity.
There are people that are starving in Africa, and he's got a knife to the clothes.
He's got a wristwatch. He's got pretzels. He's got a house.
I say that he is acting incompatibly with his own doctrine.
What he should do is sell his house, sell his car, sell all the possessions that he needs over and above
Professor Block, who would mount an attack of eminent domain even while accepting the legitimacy of the state and social contract?
I mean, who would mount an attack of eminent domain even while accepting the legitimacy of the state and social contract?
Professor Block, could one mount an attack of eminent domain even while accepting the legitimacy of the state and social complex?
To go back to your Kader example, you're in a Kader complex, there are still some things that the Kader board cannot do to you to be a member of the Kader.
Couldn't we say, or what could we say to be accepted that there is such a thing as a social contract, but end in the way is not part of the things that the government can and should do.
Well, I would say that it depends upon the contract, it depends upon the condominium contract, and if you believe the government is a legitimate institution, it depends upon what powers we ceded to them in order to get this much-wanted protection out of them.
Yes, there are certain things that the condominium association can't do, they can't shoot you, but they can widen the road or narrow this or take away one of your rooms or something like that, if that's the sort of a thing that's in the contract, and if not, then they shouldn't be able to do it.
So I would just go based on what the contract was.
There's no question that with condos it's easy, because it all starts with a single owner and you divide it up.
The point that one makes is after you divide it up in an effort to sell people in there, what kind of protections do you give them?
It turns out they're remarkably similar to those that you'd find in the United States Constitution.
There is no condominium association agreement which allows you to take this room or that room from somebody and turn it into a red room.
But there are rules that allow assessments to be laid, usually in proportion to various benefits that are seen, which becomes very tricky, because some of these benefits benefit only some members of the unit and some members of the others, and so you have all these battles.
But that's the easy case. But the turnpike case is not one like that, for example, because all these private turnpikes were only assembled with the use of eminent domain powers and then handed off to private partners.
So there were always a situation of state franchises and private development, which in fact is perfectly consistent with the basic situation, but is not consistent with this field.
Yes?
It seemed like, as Professor Epstein and the two are arguing, we were deciding on a rate that was falling by announced costs and benefits.
I think this is going to give us one of the cruxes of the issues that are being addressed.
I certainly don't make more decisions in that way.
And I don't think very many other people do either.
What it seems to be is we make decisions based on what is right and wrong.
It isn't that we ignore the consequences, but the issue is that we have a certain system of moral rules that we need to be following.
The idea here is that it wouldn't even be possible to do, because I think that we can make these interpersonal comparisons of utility as sort of metaphysically questionable.
I'm a philosophy student at Washington University, and one of the things you learn is that you have something like a utility thing, it's a subjective thing.
I think that you're confusing two things. One is, the question is, where and how do you make these decisions? It would be utterly ruinous as a moral and a particular matter to use a form of act utilitarianism, which said that with respect to each particular instance of rape, whether or not the
satisfaction on one side was sufficiently greater than the harm on the other side to warrant that intervention.
But the reason we have categorical rules is because if you look around and see what is generally happening,
you can't imagine many situations which would go the other way.
And the last thing you want to do is to give people in individual cases the opportunity to plead a utilitarian defense
because you know in effect it will override your basic judgment.
Judgment. In other words, your background norm says gains 10,000 or gains 10, losses 10,000. Somebody else comes in and they say, well, that's just the general average. In my case, the gain was enormous and she didn't much care anyhow. You just know that the whole system disappears. So that what happens is we do make, and we have to make, utilitarian judgments all the time with respect to aggregate norms. But one of the things that we are worried about in the problem of administration is that if you allow them to be made particularistically
and Financial Cases, you will in effect go into this particular form of degeneration.
Now, there are a couple of things about this which show how tricky and treacherous some of these judgments turn out to be.
First of all, if you're starting to talk about the domain of charitable work, which even in the libertarian world is just perfectly fine,
the only way we decide to whom we're going to extend the contributions on the grounds that they're needy is to be able to make,
Maybe not to legally enforce, but to individually make utilitarian judgments that somebody who is desperately hungry and hasn't had anything to eat for four days
can use a bowl of soup more than I can use my 19th particular bowl of soup at a given time.
I submit to you, if the radical subjectivity that you think to be appropriate to moral philosophy was correct,
then not only would you misunderstand the arguments that I made with respect to race,
but you would render the entire area of imperfect obligations for charitable work completely unintelligible.
And nobody's, it would be unintelligible.
You couldn't explain if you can't figure out what utility differences are,
why it is that you would make a voluntary contribution for no consideration in exchange to some people and not do it with respect to others.
And even with respect to categorical judgements, for example,
we have a categorical judgment based quote unquote on moral grounds against murder, right?
Even with consent.
And then you have to figure out if Walter's correct why we have that.
It's only because of the general abuse and practices.
But when you get to people who are desperately ill,
racked with pain under euthanasia-type circumstances,
what happens is the categorical judgements don't seem to fit the particular case.
And you get the enormous moral question
as to whether or not you now have a sub rule of cases
to deal with euthanasia as opposed to the general prohibition.
But in fact, let me just ask Walter the question.
Why is it that in every, your version of libertarianism
would you or would you not accept consent as a defense to murder?
Richard, I would accept this as a defense, if I killed Hubert and I said, well, he said,
A unit of wealth is worth more to a poor person than a rich one.
You're giving away the store once you say that. I mean, you justify all sorts of welfare because you take money from a Rockefeller or Bill Gates and he's got 19 bowls of soup and you give it to some poor guy and you got welfare.
There are cases where we can say that a rape victim loses less than the raper gains. If you use this interpersonal comparison as a utility and lose cents, which I really have no objection to,
I think that, not that charity proves interpersonal capacity utility, I think you can justify charity without that,
but in some sort of non-technical sense, there is the idea that, you know, people look around and see other people in worse shape and they want to help them.
Well, what about the case of a prostitute who is used to having sexual intercourse all the time,
And then you have a rapist who, say, was in jail for 20 years and really is desperate for sexual services.
One could then, using this loose sense of interpersonal comparisons of utility,
one could say, well, utility will increase if we allow that rape to occur.
And I still say, along with the questioner, this is a moral obscenity.
And yet this is the view, I think, that the Coase-Posner Chicago law and economics tradition leaves you wide open to,
that if you want to maximize wealth, that's your criteria, then you get these anomalous cases where utility runs the other way.
Now, in Africa, I understand nowadays, they've got this view that if you have sex with a virgin, you get cured of AIDS.
Now, this isn't true, but suppose it were true.
Suppose that if you've got AIDS, you go have sex with a virgin, unconsented sex, therefore rape, you'll save your life.
Well, you know, maybe there's a case, maybe we should favor rape in these cases.
The point is that only a Kosian-type, Posnerian judge would even give this, you know, the first thought.
Whereas a libertarian would say, look, this is a violation of property rights, this woman owns the property rights in herself,
and I don't care how much utility you get from doing this, it's too bad, it's her body.
The only way you can get her to have sex with you, she's a virgin, save your life, pay her, get her consent.
If you don't get a consent, it's a vicious, evil kind of a system, and I think it's totally unjustified.
Mr. Clark?
Yes, I wonder if I could suggest sort of a middle position, perhaps, between you two, and see what you both think about it.
Say that we prohibited all takings by the federal and state government, and you only allow it on the local level.
Perhaps this would be more like the condominium club is much easier to move into a community,
And I wonder if it might be more acceptable to Professor Block, and perhaps it would be more acceptable to Professor Epstein also.
You would have some sort of a taking, but you would limit the impact. I wonder what both of you would say about a system like that.
I think we were supposed to reverse the order.
Go ahead.
So I'll go first now, and then he'll have the last word on this.
You knew the rule?
Well, that was the rule that I mentioned with Hubert, that we would take an equal amount of time, and we would take the opposite order.
To me this is like that joke about the bathroom and the living room. If you can't tell the difference between a coercive village government and a voluntary condo, don't come into political economy.
To me it doesn't matter whether it's a world government, a state government, a national government or a town government, they're all coercive and they're all evil and they all should be ended if we have justice.
Whereas a condo or any voluntary agreement is justified, so I, while I'm open to compromise, I can't see my way clear to agreeing with this as a good compromise.
That's a perfectly sensible suggestion, except the evidence, apart from the categorical denunciation,
suggest that in many cases, exploitation by local governments is at least as bad and maybe worse than it is by national governments.
Just as a straight empirical matter, sometimes you get small isolated minorities of one kind or another, you get a powerful zoning board, and they will come up to you and say, we're going to wipe you out unless you sell to one of our friends and quote unquote a voluntary transaction.
And I think the history of the Constitution and the effort to put in powerful federal restraints against state expropriation after the Civil War is somewhat testimony to that.
The other point I do want to mention is that, you know, you've attacked Ronald and Dick and myself, but the following answer is, in the cases in which the Virgin is needed, this is very different from the common law necessity doctrine.
You have to understand what its limits were and attack it rather than this thing that you put forward, which said, in effect, in times of immediate necessity in which you're in imminent peril of your own life,
You may use somebody else's property without their consent so long as you provide compensation for the loss inflicted thereof.
It has nothing whatsoever to do with affirmative duties to give generalized aid to other individuals when there are countless numbers of individuals who are able to do it.
And in the rape case and so forth with respect to the verge, the standard argument is that transactions cost a lot.
And there are lots of different alternatives, no matter how great the need, you go through the market instead of using coercive situations.
So the cases that were given are in fact cases that would receive categorical denunciation even under the traditional rules that do allow condemnation of private property for a public use.
And remember, that's what we were talking about.
We were not talking about private use as a force for private advantage.
We were talking about the eminent domain question, nor shall private property be taken to public use without just compensation.
How do you enforce the situation in the libertarian world, or libertarian regime, where the condo, the cooperative, actually ends up taking over somebody's room and turning it into a rec room anyway, despite the fact that that wasn't in the contract?
How did you enforce that? So how did the apartment owner, or the contractor, enforce the contract?
If there's free market anarchism or if we have limited government libertarianism or minarchism, he goes to court and says,
look, this was not part of the condominium agreement.
They said, yes, the color of the house and the color of the curtains,
but they didn't say anything about grabbing my rec room.
They grabbed my rec room. I want an injunction. I want damages.
So whoever the forces of law and order would be, you would appeal to them.
But if there are forces of law and order that are not the condominium association,
and then they're going to have to get their revenues through taxation.
It's one thing to try to minimize the role of force in human affairs.
It's another thing to pretend that you can organize them where it's never going to be used in a legitimate fashion.
Well, I would disagree with that. I would say there's a whole literature that Richard isn't looking at.
Murray Rothbard, Hans Hoppe, David Friedman, which talks about competing defense agencies.
It's at least a debatable point where Richard just sort of ignores this.
It seems to me that you could have competing defense agencies without a taxation system and you go to Court A, because Court A is your court. And you go on from there. If you read what Hoppe and Rothbard and David Friedman have said about this, you understand how the competing defense agencies would work and to a better effect than coercive ones.
The answer turns out that you're not quite sure who's been the source of aggression against you.
And now what you want to do is to run investigation and you have multiple competing defense agencies.
Now you've got 73 different agencies from whom you have to get approval in order to run some kind of investigation.
The system will collapse and then exactly what I said in the reason argument will take place.
You'll get bad governments instead of good governments.
And the reason you have 170 million people dying is because people didn't follow these principles.
The reason why you have competition in a country like ours is that we deviate from these principles all too often.
We don't deviate them so far as to allow us to descend into anarchy.
And remember, the common meaning of the word anarchy is not one which invites all sorts of exaltation.
It's something which seems to preach or to be aware of the prospect of imminent violence and destruction.
I disagree with that. To me, etymologically, the word archi just means rule, cons, categorical imperative, do this.
Whereas the hypothetical would be, if you want this, then do that. Archi just means rule, and I think it's unjustified to rule other adult human beings.
I'm not against paternalism for three-year-old children, but not for adults. Whereas anarchy just means, the prefix a means, without archi,
without arbitrary rule would be the way I would put it.
It's other people who've said it means chaos
and weirdness and things like that.
If I jump up right now,
the truth of the matter is
that I am exerting gravitational force on the Earth
and the Earth is exerting gravitational force on me.
Now, to put it this way,
it would show no sense of proportion
because the gravitational force that the Earth puts on me
is way more than the gravitational force that I put on it,
even though that statement is true,
that we each exert gravitational force on the other.
My claim here is that what Richard is doing
is guilty of being some sort of lack of sense of proportion.
What he's doing is he's cabling about
through these stupid roads and oil wells.
Meanwhile, people are dying like flies under his system,
a system that he admits is a bad system
Because of Errors of What Have You.
You know, we in New Orleans are experts on vampires.
You have to stipulate this because, you know, who would disagree with that?
And to me, the government is sort of like a vampire.
And to have a limited vampire shows sort of a lack of proportion.
These vampires are out there killing people in droves.
This 170 million is just people killed by their own states.
The governments have concocted all sorts of wars.
and he is willing to embrace this present system
in order to make it a little bit easier for roadways,
which also kill 40,000 people a year,
which is not really mentioned, the government roadways.
I'm embracing one form of government.
I'm not defending EDME or Saddam Hussein.
I mean, you know, you talk about a sense of proportion.
There's got to be some difference between governments
that, you know, allow people to essentially lead to age 70 and governments that murder people in their beds when they're six years of age.
I mean, and what happened is, in all the places in which you stall an anecdote, a thug takes over and you get bad government.
So as Edmund Burke said, and it applies to you, is that all that is necessary for forces of evil to prevail in the world is for people of goodwill to do nothing.
And that's what you're recommending.
Well, I'm not recommending doing nothing.
What I'm doing is recommending getting rid of vampires, whether they're vampires that
take just a little bit of blood or vampires that take gallons of blood.
That's only a...
You know, there's this joke, the man asks the woman, would you go to bed with me for
a million dollars?
And she says, okay.
And then he says, well, how about two bucks?
He says, what kind of woman do you think I am?
And he says, we've already established that principle of what kind of woman you are.
We're only arguing about the price.
Well, it seems to me that we've established that, or at least to my satisfaction, that
governments are vampires and ghouls and murderers and killers and we're just
arguing about how much how much are they murdering and I don't think that
that's a very important discussion.
Walter, are you indifferent to living in here or in Saddam Hussein's Iraq?
I mean, I wonder why? I think the only reason is that you have the blessings of liberty secured by a limited government.
Let's understand one thing. When David Friedman talks about his societies – I mean, I love David –
but this is a guy whose only example is some small obscure goods in the up mountains in the Icelandic 12th century.
What happens in every single case is that there's not a single recognizable document of property
or contract or consent or fraud or necessity that comes in your case.
All I'm saying is that there's something about the tradition which makes a little sense.
Well, you say that this is secured by limited government, and I would say that the liberty we have here is in spite of limited government, because even if we have limited government, we still have to figure them out.
Even limited government starts off as a mafia protection racket.
Even limited government starts off and goes to innocent people and says, look, you're
going to join this whether you like it or not and you're going to pay us taxes whether
you like it or not.
How can an institution that starts that way, which Richard admits starts that way, how
can an institution like that much good come out of it?
Because they're not running a protection racket.
If they're doing it right, they're giving you services back equal or greater than the
taxes they impose.
Services?
Do you want to talk about that? Well, you know, I've got to tell you, there's this following experiment, I'd like to create some large national park, and what we will do is, we'll say this will be blockaded, and everybody who agrees with Walter can go in there, we'll seal off the boundary line, and then in 20 years we'll open up the gates and exhume the body, I mean...
I would say services, schmervises. The key is not whether you give services. The key is whether it's voluntary. I can give you a piece of chalk and say that's the service for, you know, taking your wallet.
With regards to national parks, I want to ask Richard a question. Richard, where would you rather meet me tonight at 3 in the morning, in Disney World or in Central Park, which is a government park?
Look, I think...
I get the last word.
Oh, okay. That's all we have time for. Thank you to our debaters and thank you for coming.