Re: Re: Abstract forms of property
Sat, 9 Jan 1999 01:34:44 EST

Robin Hanson wrote:

>It seems to me a bit of an abstract stretch to say that if one induced any
>form of radiation on one's property, one therefore had implicit absolute
>perpetual rights to to use all forms of radiation, including say neutrinos,
>gravitons, Higgs particles, etc.

Had I said that (I didn't, but let's suppose that I did), it would have been quite an abstract leap, I grant. But it would have been abstract only because nobody puts those exotic sorts of radiation to everyday use. If we used, say, gravitons to work our TV remote controls, you would still have to grapple with my observation that,

>It makes little sense to say
>that the FCC has no claim over *one* frequency of radiation that I use solely
>on my property . . . while it does over another frequency . . . .

I followed with a counter-argument, by way of example, to Robin's claim that the FCC can establish its rights to the spectrum by mere declaration. Then, separately, I answered Robin's question about good title by summing up the common law rule. Robin replied:

>Then by your preferred approach, unless you are one of the original people
>claim the FCC stole these spectrum rights from, you seem to have no standing
>complain. We all seem to accept that the FCC seems to be in "possession" of
>these spectrum rights. You just accuse them of having stole them from

No, that confounds two separate lines of argument. Recall that I have throughout argued *against* establishing property rights in the spectrum. The good title rule thus does not apply (I raised it only in an attempt to clarify a point of law). When you buy real property, you do not get *title* to the spectrum used thereon. You get the right to use chattles such as transmitters and recievers in any manner whatsoever so long as you do not interefere with your neighbors' like uses. By way of analogy, your right to keep a journal follows from your rights in paper, ink, and a private study. You do not get title to "journal space." The FCC can no more claim all the spectrum than a Federal Records Commission could claim the right to all personal notes.

>Furthermore, even if you did represent one of these initial supposed losers
>spectrum rights, you'd need to show that these people didn't implicitly
>the juristiction of the government that empowered the FCC. That is, if these
>people accepted that their property was not absolute, but instead subject to
>constituionally-valid government choices, then it is not clear what their
>complaint is. Were they not adequately compensated for the "taking"?

That response moves too quickly from mere implied consent to "people accepted." For an explanation of the various modes of justification of political and legal authority, and of their relative weights, see "Why Obey the Law," available off my homepage.

But set aside the question of justification. I trust that I have shown that a good faith (if not convincing) argument exists to the effect that the FCC has acted unjustly and unconstitutionally by claiming sole rights to the spectrum. One does not end the argument with, "But the people implicitly agreed!" Presumably, in a constitutional republic such as the U.S., good faith arguments about public policy play a role in shaping the functions and scope of the State. So to "the people implicitly agreed . . . " I reply, ". . . to subject FCC functions to ongoing critical scrutiny."


T.0. Morrow