I was recently thinking about one of those stories you sometimes get in economic analysis of law, the stories where "only government intervention" could resolve the problem. And, at least on the surface it gives every appearance of being just that, a tale where enforcing individual rights strictly would have hampered technology and stalled our progress. More than that, it appears to argue in favor of a cause I detest, the anachronistic holdover of royal prerogative called "eminent domain" (See "Symmetry and Asymmetry in Government"). However, after I thought about it a little more, I came to realize I was being taken in more by good salesmanship than by a true argument. Yes, the government solution made things move more smoothly, but at the loss of a crucial right, and establishing dangerous principles, while there existed other solutions which did neither.

The story starts with traditional property rights. According to doctrine which developed through centuries of English common law, the individual who holds title to land, owns not just the land but the soil below, all the way down, and the air above, up to the heavens. Now, these rights were somewhat impaired in the modern era by a few states which sought to limit mineral rights held by individuals*, and were also impaired int he way all rights were by things such as building codes**, but otherwise remained intact.

Then commercial flight arrived. Suddenly, that useless property right everyone had in the air above their heads became valuable. Want to fly from Tulsa to Peoria? There are a whole lot of property owners whose permission you need. Of course, you could adjust your flight path to follow the most compliant owners, but still, it seemed very likely that, as with the railroads heading west, a few holdouts could take a promising route and hold it hostage for a considerable pay day. Or perhaps a rival airline could buy out or bribe enough property holders to make competing routes impossible.

Enter the government. Seeing, or at least imagining, that such wrangling for property rights could seriously impeded the development of air travel. And so, as a solution, individuals were effectively stripped of their rights to air above a certain arbitrary line. The property rights they once enjoyed "to the heavens" (presumably to the upper limits of the atmosphere), were now taken away, with no compensation provided. Instead, a federal agency was entrusted with administering the suddenly nationalized airspace.

And that is whee I began to question my commitment to absolute rights. It seemed, hearing this story, that there might be times when the state needs to intervene. After all, the fears I listed above were very real. So is it not quite possible that if we enforced property rights absolutely there would never have developed an air travel network such as we have today? It is fine and good to argue that rational individuals could be induced to give permission for travel through their airspace, but we all know in reality some individuals don't act rationally, and it is possible that such hold outs could have cut off entire areas by making the best routes unavailable.

And then I realized that there is a rather simple solution, and one which leaves property rights intact. The fact is that even with the airspace being public property, we still have to pay those who live beneath flight paths. Of course, usually states take this on themselves, as they are almost always owners or part owners of airports, but even now we end up paying off those who live beneath flight paths, mainly due tot he noise which impairs their enjoyment of property. So, if we have to pay them now, what would be so much harder about paying hem for property rights to the air as well?

Now, granted, we would also have to pay the people we fly over so high they can't even hear the planes, but that is a minor problem. as they won't suffer any inconvenience, even a token payment would be effectively a windfall, so most would agree happily. And, in case a few tried to hold out there are always legislative answers which do not destroy property rights. For example, we could fix the damages for nuisance trespass into airspace at $1, which would allow planes to fly over holdout property holders without fear of suit. After all, few would sue for a dollar, and those who did, the airlines could simply accept default judgment and pay the dollar. And best of all, while discouraging nuisance suits, it would not require removing existing property rights.

Of course many people will ask what the difference is. My solution makes lawsuits pointless, and by removing property rights we eliminate suits, what's the difference? But there is a HUGE difference. my solution might result in making rights rather valueless and make trespass by airlines pretty much a deed impossible to prosecute. But it leave the rights intact. On the other hand, the solution we did adopt establishes the principle that, when rights get in the way of any purpose the sitting government thinks important, they can remove individual rights. And that is a dangerous precedent.

And that is why I have wasted so much time on what many see as a pointless venture, debunking these claims that the government needs the ability to violate individual rights, be it through eminent domain, through the confiscation of rights to airspace or any other authoritarian act. The truth is, in almost every case, actually every case I have considered, there was a solution which did not require destroying individual rights. Yes, some may have made solutions more costly, may have delayed goals the state thought important or in some other way made things "worse" from the point of view of the government, but they respected rights. And, as government was instituted to protect rights, isn't that the most important goal? If the state is violating our rights, then what function is it serving?

----------------------------------------------------------------------------------------------------

* For the most part efforts to strip property owners of mineral rights have not been popular, and so the downward portion of property rights have left intact. But there are exceptions.

** The history of building codes is a rather convoluted one. Prior to the 14th amendment it was largely decided state by state, with some states allowing government to strip individuals of rights easily, others holding property rights sacrosanct. After the 14th amendment passed the federal courts got involved, but with a rather mixed record. In the late 19th century some courts accepted that the prohibition against ex post facto applied to civil as well as criminal law and forbid laws which stripped individuals of existing rights, but that was a minority opinion.  Others argued that stripping someone of existing rights was legally a taking requiring compensation. And a few other theories arose as well. But sometime between the Wilson and FDR administrations, the courts changed radically, and by the late 30's, protection of property rights against government incursions was a lost cause. And one which continues to be lost, as Kelo shows. For a good survey, by someone who has fought cases related to zoning and building codes, read Economic Liberties and the Constitution by Bernard Siegan. It does a far better job covering this than a few footnotes can, as well as arguing for both the futility and inappropriateness of zoning restrictions.

----------------------------------------------------------------------------------------------------

POSTSCRIPT

The reason I began thinking about this at all was because I have sometimes dreamed of becoming an amateur aviator. Building something simplistic, like an ultralight, a balloon, or maybe a replica of those clumsy, low speed bombers the Soviets used in World War II (the ones that looks like really big flying row boats with no enclosures for the pilots and sides made of corrugated metal). The problem is, now that the FAA effectively owns the skies, you need to get the OK of the feds to do anything. And so my dream of just building something for a lark finds itself wrecked upon the need for licensing, so many hours of training, massive cost, federal flight plan approval, and all the other headaches involved whenever the state gets involved. Yes, amateur low speed aviation is risky, but can't I assume that risk without spending a fortune and accumulating a mountain of paperwork? Apparently not. (And as a balloon seems most likely given my weak technical skills and lack of resources, the chances of me harming anyone other than myself are quite small, making the "safety of others " arguments pretty weak.)

The arguments in favor sounds plausible. If you just go anywhere, planes will crash. And crashing planes do much harm. Not to mention the potential for terrorism. But, when you start to think about it more, you realize the same could be applied to cars, or even walking. Men on foot can carry bombs after all. yet we do not allow the same absolute restrictions on our ground movement. Instead, we rely, for the most part, on cooperative agreements to keep us from colliding. (Except of course, the government's rather absolutist control of public roads, but even there private roadways exist in parallel in some places, so the control is nowhere near as total as it is over air travel.)

But that is not my topic here, simply the thought process which led me to question the mass seizure of all rights above a fixed altitude. And that, in turn led to what you read above, a questioning of all those stories we hear about how certain problems can "only" be solved by government. I agree that government is the right tool for certain job ("Tools", "An Analogy For Government", "In A Nutshell"), but I do not agree where most of these stories draw the lines. In most cases, these tales draw a pragmatic, case by case argument for stripping us of our rights, and as I argued in  "Smaller Government , Fair Weather Friends and Special Cases" and "Inescapable Logic", that sort of argument leads inexorably to losing all rights. But then again, my thoughts on pragmatism in general have been well documented. ("Pragmatism Revistied, Again", "The Shortcomings of Pragmatism", "Pragmatism Revisited"). So, for now, I will leave it at that, and hope that my post above speaks for itself.

POSTSCRIPT II

For those who feel the need to comment seriously on the postscript, realize this is little more than a day dream. I am very unlikely to ever build anything capable of flight, much less fly in it. My point being that there are others, quite serious about such hobbies, who are also discouraged by such laws. But it seems that in recent times, discouraging people from doing anything without explicit approval is one of the main functions of the state. It seems the era of independent pioneers taking on adventures themselves is done, now everything must be overseen by the state, if not involve direct state financing and control.

POSTSCRIPT III

Perhaps this is not the best example, as people tend to think of air traffic control and similar tasks as only possible with government involvement. It is akin to arguing against public ownership of roads or provision of education (though I did that too in "You Don't Drown in a Glass of Water - Vouchers Revisited" and "The Inevitability of Bureaucratic Management in Government Enterprises"). People have come to see state management as essential simply because no other solution has been tried in recent times. Still, even if it is an example that does not immediately appeal to most, it does not invalidate my main point that there is no reason to strip individuals of rights simply because they prove inconvenient to the desires of the state. If that were the case, then why can't the state simply confiscate all our goods to pay for whatever they wish to do?

And, that brings me to the final question. As I wrote this, I imagined someone asking me about the problem of state taxing power. And that is difficult, as we have become so used to coercive taxation. I would like to say that I have seen proposals for voluntary taxation which work, but I doubt anyone would believe me. I do believe with a very small state, it would be possible to fund it through largely voluntary taxation (a topic I shall cover later), but if that is out of the question, then I would argue that some form of taxation is acceptable as a cost of living under the state's protection, so the state does have a right to take taxes. That does not mean the state has the right to violate rights, only that, as it provides a service, it can then take payment for it.

Then again, I would truly prefer to move to a more voluntary tax, as I have problems with even that small concession to state power over the individual, and I think with a sufficiently small state ideas such as national lotteries, a contract registration fee, and (though it is deplored by many) a poll tax for voting, would be adequate. But that requires a lengthy post all its own, as explaining why they would be enough if the government were small, and why each is justified requires more time than I have here.

And, having now convinced readers I am really one of those loony libertarians who doesn't even believe in taxes or eminent domain, I suppose I should wrap up these postscripts.