Epstein on Private Property

quotes classical liberalism law majoritarianism private property constitution holdout problem

12 Mar 2014

Richard Epstein on constitutional law:

Private property is the central institution of classical liberal theory. The Constitution contains the explicit guarantee of the Fifth Amendment, which provides: “nor shall private property be taken for public use, without just compensation.” It is easy to discern the theory behind this provision. It compromises between an absolutist libertarian vision of private property that holds that the state can never take it from its owner, even with full compensation, and the totalitarian vision that routinely allows the government to take private property for public use without paying any compensation at all. The just compensation requirement splits the difference, letting the government force the transfer of property, but only upon payment of just compensation. The state thus avoids the holdout problem, without creating the alternative risk of expropriation.

The greatest [dangers of faction] is that majoritarian politics…allow strong majorities to confiscate the property of an isolated minority. It was for just that reason that the Framers advocated a republican form of government, in contrast to a democratic one, whose complex voting rules were intended to make it more difficult for majorities to always have their way.

Today, with weak property rights protection, the dangerous dynamic of majoritarian politics can engulf all government actions. In the absence of a strong just compensation requirement, nothing ensures that government takings, even when done for public use, will be worth more to the public at large than to its private owners. Protecting private property does not stand in opposition to the welfare of the community at large, but is thoroughly consistent with it.

What is needed is not the mischief of collective self-governance, but the inalienable right of individual self-governance. The failure to police the line between the private and public space has led to the degeneration of the political debate and the massive destruction of private wealth.

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