Right but Wrong

It’s interesting that in none of the many commentaries he’s done on the issue of eminent domain (including his most recent) has Mark Hyman made any distinction between the particular cases he cites and the more general issue of eminent domain.

My suspicion is that this is because Hyman, being a thoroughgoing conservative, doesn’t like eminent domain in general, and is only using particularly contentious examples as a way of tarring the entire concept. This is a common argumentative trick, but I think it is used here in a consciously misleading way.

The case Hyman describes of a businessman having property seized in Los Angeles certainly seems egregious and unfair (although I acknowledge that I only know a few of the basic facts, and there might be more to the story). Eminent domain certainly can be abused, and it’s essential for the court system to protect the rights of property holders from unwarranted seizures of land.

But I suspect that Hyman, although he doesn’t say it, is against eminent domain in general. Part of the conservative world view is that private property rights are absolute, and that they are also the sine qua non of American democracy.

The problem is that placing private property rights on an unassailable pedestal can result in other rights being violated. A slum lord can refuse to sell inner city property for civic development of new, safe, clean, low income housing. A factory owner can dump toxic waste on the ground. Why not? After all, shouldn’t we be free to do whatever we want with our property?

A conservative would tend to answer this question with a resounding “yes.” But I would suggest that my right not to have the groundwater polluted in my neighborhood is every bit as real as the property rights of the factory owner. When rights come into conflict, reasonable compromises must be made. We put reasonable limitations on all of our rights, particularly when the unhindered enjoyment of them infringes on the rights of others. Property rights are no different.

So while Hyman may be right about the specific case he discusses, the implication that this is somehow a typical or representative case of eminent domain is wrong, and I suspect his call for “judges on the Supreme Court and all courts who respect the Constitution and the Bill of Rights” is in fact code for judges that will systematically fetishize the rights of individual property holders at the expense of broader communal rights . . . rights that most of us would consider every bit as worthy of consideration as the right of a property owner.

And that’s The Counterpoint.

Hyman Index: 2.60