July 05, 2005

Sorites and Kelo

via Jim Henley, Julian Sanchez uses the sorites paradox to explain what's wrong with Kelo (the recent eminent domain Supreme Court decision) and Raich (the medical marijuana decision). But though the sorites paradox may--I said, may--provide some support for their views on one of these cases, I think it undercuts the broader libertarian views Sanchez and Henley favor.

Let us begin with a cheap shot.

Sanchez says of the sorites:

It's not a terribly deep puzzle, of course: It simply illustrates that some of our everyday concepts, like that of a heap, are vague or fuzzy, not susceptible to such precise definition. Try to define such concepts in too much detail and absurdity results.

I'll let others deal with the part after the colon. Actually I'll let them deal with the part before the colon as well. But it seems a tad presumptuous.

Now, Sanchez's application of the sorites is to say that many individually innocuous precedents have been strung together to reach an absurd conclusion. I just don't see that for Raich--I think the ban on medical marijuana is dumb, but it seems like the sort of thing the government should be able to pass. But it's reasonably convincing that in the Kelo case eminent domain was not applied for public use.

But then the moral of the sorites is that, even if this isn't public use, some of the steps earlier along the line clearly were. If you can't run the sorites forward, you can't run it backward either. Taking Kelo's home wasn't public use--I'm fine with that. And I think many previous instances of eminent domain were obviously public use, and should have been allowed; even if we can't draw a sharp line between the cases. I don't think Henley and Sanchez are fine with the previous uses of eminent domain, either. (As Unf pointed out.)

There's another problem here. The courts can't say, "Well, this is a borderline case." Either a use of eminent domain will be allowed or it won't. So, if you say there's a distinction to be drawn, there need to be some tests as to how to draw the distinction. (As I understand--not a lawyer.) And the most persuasive argument I've seen for Kelo is that we don't want the courts always trying to figure out what counts as 'public use' and what doesn't. I think it might be possible to arrive at more substantive tests that do distinguish some cases from others, but simple invocation of the sorites won't necessarily get us anywhere. At least under Kelo the local government, democratically elected agent of the public (such as it is), gets to decide what counts as public use.

Posted by Matt Weiner at July 5, 2005 05:25 PM

Now, honestly, these are the only two things that liberals might get credit for, in my years of paying attention, that make me embarassed to be on the left.

The only two.

I agree with you on Raich.

But I understand that previous decisions, like Berman, made Kelo complete within precedent.

I haven't paid enough attention to much attention to these, either. I've been pretending that I've been working on something important, lately, and so haven't been reading any old USSC cases.

Posted by: Josh Narins at July 5, 2005 06:16 PM