With all the hullabaloo about the President declaring a national emergency in order to build a wall/border/security system at our Southern border and the effect it will have on the people migrating to our country many of us have overlooked what direct effect it will have on US citizens. I’m specifically speaking about the power of eminent domain.
As we discussed in Ep. 64, Rep. Amash has proposed a bill does strike at the most obviously immoral part of the eminent domain process; many of the land owners are not appropriately compensated until after the land has been devalued and seized. Land owners, like Susette Kilo, often face years of legal battle that they may or may not win just to get what’s due to them. However, the question I want to address here is “Is the taking of the physical land an immoral act?”.
I argue no.
The first argument that I use is taking the situation to the extreme:
If, while you were sleeping, the government were to dislodge your physical land to 50ft deep and all the property on it, move it about a mile off the border (in the case of the wall), and plant it back down then what harm would have been incurred to you, your property or even the potential of the land?
Since nothing you owned has been damaged, you yourself are still fine, and your house is essentially in the same location then no harm has been incurred.
This means that eminent domain is not an issue of the government harming people, but rather an issue of pragmatics. How much does the inconvenience cost? the general scenery? the potential of the land? All these things have a price and so they can be negotiated and evaluated.
The next argument looks at the justice of the situation. All of us would agree that theft of something you own is wrong, even if you’re compensated at above market price. This demands that we prove or disprove that the land is justifiably owned by the owner.
But how do we proclaim a moral owner?
We wouldn’t say that a person owns a motorcycle if he has made the original rider get off the bike at gunpoint. We also have a moral intuition to say that if a third person were to purchase the same motorcycle from the “bike-jacker” that he doesn’t have a justified claim to the bike, even if he purchased the bike without knowing it was stolen. We would say that the third person should return the bike to the original owner. We may also say that the third person has been frauded and ought to be compensated, but we’d never tell the original rider that he can’t have his motorcycle back.
Is it then that only Native Americans can justifiably own land?
Well even Natives fought over land dominance and took land and resources from each other. This on top of many tribes living a non-sedentary lifestyle.
So would it only be the last place that they set up camp?
Or is it only the first man to walk the land and his progeny that have a just claim?
Even if we could find living offspring, how would we even frame what the original man had claimed? Is it just where his foot met the ground? Is it a mile around his living spaces? Is it any current property lines he has walked on?
All of these answers seem to be arbitrary, impractical, and not universal.
Due to the United States, and in reality all countries, being the “motorcycle thieves” and us land owners being the defrauded “third persons” it would then seem that we cannot rely on the universal morality of ownership to claim that eminent domain is immoral.
However, what we can rely on is the morality of contracts. When the “motorcycle thief” exchanges the motorcycle for the third person’s money, he is entering into the deal that:
“So long as the original owner doesn’t return and overpower me then I will shoulder the burden of the immorality and you will we allowed to gain the benefits of the motorcycle. Also, if at anytime I wish to get the motorcycle back then I must return your money invested as well as pay for any improvements to the motorcycle you have done.”
This is where the issue of eminent domain in the United States breaks down. This is what Rep. Amash’s bill is trying to solve.
In the sense that when we feel discomfort over people’s land being taken from them it is because we understand that we are violating the sanctity of contracts or promises. The fact that the United States has sold land that universally and justifiably isn’t their’s means that all sales are null and void, but if we ignore the universal immorality of the ill-gotten land then the only issue we have now is that the United States is not properly retaking or properly repaying its people for the land. So, at this point in time, with a nation built on at least some ill-gotten gains, we ought to fight to make sure that those whose lands are threatened with imminent domain be properly and exceptionally compensated.
This is all not to mention that from a utilitarian standpoint it is better to let history go and all of us to pretend that nations and peoples can own land.
To end I would also like to link to Hayek on the Importance of Private Property