by Ari Armstrong
The following article originally appeared at Boulder Weekly on February 16, 2006.
"Individual Rights are the means of subordinating society to moral law." That's the quote by Ayn Rand on the promotional material for a conference scheduled for March 4-5 in Lakewood on law, individual rights and the judicial system. (See frontrangeobjectivism.com. Special rates are available for students.)
Dana Berliner, who, as part of the team from the Institute for Justice (ij.org), defended Susette Kelo against developers who wanted to take her land, will discuss eminent domain and the Fifth Amendment at the conference. Kelo v. New London is the now-infamous Supreme Court decision that allowed eminent domain for purposes of economic development. That decision has ignited a mass movement to limit eminent domain -- including an effort in Colorado to put a measure on this year's ballot to protect property rights.
Three scholars will also attend the conference. Amy Peikoff, a philosophy professor at the Air Force Academy, will discuss the "right to privacy" and offer an alternative foundation for the "legal protection of privacy."
Tara Smith (University of Texas) will discuss "originalism" as a theory of Constitutional interpretation. Hint: She doesn't think it's legitimate. And historian Eric Daniels will discuss the "unenumerated rights" of the Ninth Amendment.
The event purports to be the "first [conference] to focus on the application of Objectivism to legal issues." Objectivism is the name that Rand gave to her philosophy, which includes a political theory of individual rights. Not surprisingly, Rand also wrote about "objective law." What does that mean, and how does it relate to rights?
In her essay, "The Nature of Government," Rand lays out the basic argument. People, who survive fundamentally by the use of reason, need "the freedom to think and to act according to [their] rational judgment." This requires a political system of individual rights that bars the initiation of physical force. In order to protect individual rights, governments must implement "objective" legal rules regarding the police and the courts.
"[A]ll laws must be based on individual rights and aimed at their protection. All laws must be objective (and objectively justifiable): Men must know clearly, and in advance of taking an action, what the law forbids them to do (and why), what constitutes a crime and what penalty they will incur if they commit it."
So, for Rand, proper law is objective in two ways. First, the law has an objective foundation, in that it is justified according to the principles of individual rights as the precondition for human thriving in a society. Second, the law is objectively understandable. Non-objective law, Rand writes in an essay concerning antitrust, is capricious, incomprehensible and "wantonly irrational."
So, to return to the example of eminent domain, obviously the taking of land by force at a price not acceptable to the owner, especially for purposes of "economic development," violates property rights. But it is also non-objective in that it is capricious.
As Berliner said at a Jan. 23 briefing at the state capitol, "If Ms. Kelo could lose her home because an office building might produce more taxes there, then anyone could lose their home."
And so the proposed ballot initiative (see theccpr.com) limits eminent domain by defining "public use." The measure states, "The public or private benefits of economic development, including an increase in the tax base, tax revenues, employment, or general economic health shall not constitute a public use."
Distinguishing these two senses of objectivity with respect to law helps to resolve some paradoxes.
Why is it that, during the same session when numerous legislators are trying to tighten up eminent domain -- something that protects property rights -- many legislators are also trying to impose smoking bans on private establishments, thus violating property rights?
Why did Dave Schultheis, a Republican legislator who is, one might expect, pro-business, tell Vail Daily that he wanted to "put the squeeze on employers" who hire undocumented workers? Stopping people from bringing willing workers onto their property is clearly a violation of property rights.
The answer, I think, is that people in our society are still often concerned about making law objective in the sense of being well-defined and clear, but people aren't nearly as concerned with making law objective in the sense of basing it on the protection of individual rights.
One of the reasons Republicans hate the current immigration laws is that they don't work and they're not enforced. Republicans would rather have a clear, consistently enforced set of rules, even if they trample property rights. (I want clear rules that also allow free migration of all but the criminal and the contagious.)
Most people want to limit eminent domain because they don't like the capriciousness of current rules. But many people don't mind imposing smoking bans, which violate property rights but at least are clear.
The problem, as people will either discover or suffer, is that a system of laws that doesn't protect individual rights (including property rights) is inherently capricious, and it opens wide the door to laws that are "wantonly irrational" and unpredictable.