Readers Forum
To the Editors:
Lee Ownby’s detached depiction of the misuse of the government’s eminent domain power (“Beyond Eminent Domain,” March 1990 Freeman) to serve private interests tends to obscure the important moral values at issue. The forced taking of private property avowedly to promote the business of another private individual is a pervasive scandal in American law. That it has gone on for over a century, and that it happens all the time—not merely in the case described by Mr. Ownby, or in the Poletown taking in Detroit to subsidize General Motors—is all the more reason to oppose it forthrightly and vigorously. There are two sets of villains in this drama, working hand in hand. They are the business people willing to sell their birthright and their society’s freedom for a mess of profits, and judges who have, for all practical purposes, read the “public use” limitation on takings out of the Constitution, so that it retains no pragmatic meaning whatever. These people need to be confronted with the profound immorality of their deeds.
Thus, Mr. Ownby’s equivocal if not actually sympathetic depiction of the Knoxville businessman benefitting from such misuse of eminent domain is unfortunate. Justice Brandeis cautioned that the greatest threat to liberty comes from well-meaning but misguided people who erode our freedoms by degrees. Such concerns surely apply to the misuse of eminent domain to fatten the purses of business people who are unable or unwilling to compete effectively in the private market to obtain the property they want, and who instead turn to the government to get it for them by force.
The ultimate scandal inherent in this process is that the courts proclaim themselves all but powerless to enforce the “public use” Constitutional limitation, then go on in the name of “just compensation” to deny compensation to the condemnees for a variety of economic and personal losses actually suffered, but judicially declared to be “non-compensable.”
Gideon Kanner
Professor of Law
Loyola Law School
Los Angeles, California
Lee Ownby replies:
I concur with Professor Kanner in his assertion that important moral values are at issue when private business interests enlist state power to forcibly obtain another’s private property. As he indicated, this legal plunder is widespread and continues unabated on many fronts. While I don’t believe that I was as sympathetic to this misuse of power as he suggests, I do admit to not being as forceful as my convictions would demand.
Much of the public has been anesthetized to government’s steady encroachment onto private property rights. My approach was to subtly challenge those who may have nascent seeds of doubt about the private sector’s role in the state’s wrongdoing. Defenders of private property rights have no difficulty understanding what is being lost. It is the multitudes that have not been given the tools of analysis by which they can conclude that such actions are improper. I acknowledged some of the positive contributions of Whittle, even if tainted in Professor Kanner’s view, in hopes that the property rights position might receive a more earnest hearing.
I welcome Professor Kanner’s forceful and persuasive arguments in the defense of private prop-erty. I regret that I did not have the benefit of his viewpoint during my law school career. If I had, perhaps, my own awakening to the important link between private property and freedom could have been hastened.
Lee Ownby
Knoxville, Tennessee
To the Editors:
In his “Academic Freedom at a Public University” (March 1990 Freeman), John Lott tells of what he thinks “are not unusual events at public universities.” The happenings he describes are certainly not unique. In an uncanny fashion, they parallel occurrences in Ohio during a 1983 income tax repeal initiative. I and a colleague supported such an initiative. We were assailed in the public press by the state’s Governor. A trustee of another state-supported university wrote to say that if he had anything to say about it, we would be fired. There were phone calls from the Governor’s office to the president of our university urging him to “shut us up.” At times, we were accused of “mining” the university. An academic campaign to discredit us was organized. Rumors were circulated questioning our personal motives and integrity. And, elsewhere in the state, academics who might have supported us were threatened with zero salary raises for years to come. John Lott’s story is quite familiar. To quote Yogi Berra’s malapropism, for me, it was “deja vu all over again.”
Lowell Gallaway
Distinguished Professor of Economics
Ohio University, Athens, Ohio.
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