TAKINGS DIALOGUE, CONTINUED

Dear Mr. Sandefur:

I'm continuing with the letter format, partly because it provides for a certain discipline on my part (i.e., it's easier to strike the appropriate tone if you are addressing an actual person), but also because I think that it helps to highlight the fact that political and legal questions -- even when they tend toward the question of rights as such -- occur within a particular context. If you find that tendentious, I'm sure you're not alone! As I've mentioned, my preferred context would be a friendly discussion over a good glass of Kentucky bourbon (or Diet Pepsi, if you prefer), but this will have to do.

Speaking of bourbon: I'm intrigued by your general attack on progressivism, as you might guess from my drinking habits. But the historical analogy goes back a bit further, as I'm sure you're well aware. We are not going to agree on the correct interpretation of the history of takings law unless we can agree on the appropriate context for what William Novak calls "a watershed in the history of American public law," namely, Wynehamer v. People (1856). See Novak, The People's Welfare, 186. Novak argues that this case, in which the New York Court of Appeals wrote some stirring, but historically anomalous words about the "inviolability" of property rights in the context of a decision that struck down a prohibition ordinance as a denial of due process, represents a departure from previous understandings of the social context of property rights. You and I both like the result, I am sure -- I like it because I like bourbon, you like it because it is a strong statement of the view of property rights that you would like to defend. I'll take the bourbon without the theory, thank you very much.

I suppose that in one sense it really doesn't matter whether or not the understanding of property that you advance was most forecefully articulated in the mid- to late nineteenth century, rather than fifty or one hundred years prior to that date. I'm sure that you can find quotes that could reasonably be interpreted in the manner that you want for the fifty years prior to Wynehamer, although they are probably not as numerous as one might expect if you are really correct that you are trying to restore a dominant understanding of property rights. Moreover, as far as I can tell from our general approaches to these things, I'm supposed to be the one who is really interested in history!

I'm hopping in the car to spend Thanksgiving break in D.C., so I'll leave it at that for now. This is not even a minimally adequate response to your last detailed post, but life intervenes. I'll have more later.

Best (and Here's Mud in Yer Eye!),

Brett Marston

MORE:

P.S.:Just on the restorative point: you argue that you want “to restore the protections for the rights of people to own and use property, which were part of the original Constitution, the erosion of which began in the Progressive era and culminated in the 1930s (or, in the case of eminent domain, in the 1950s)” (links in original). As far as I understand your claim, you want to say that compensation for the economic effects of land-use regulation would have been one of those protections. I don’t think that this claim can be sustained at that level of specificity (aside from what one might consider the anachronism here, a problem that is definitely troubling because it implies that we’ve glossed over the incredible economic and social changes that have occurred here in two decades). If one considers the variety of regulations at the local level – regulations thatWilliam Novak argues were not considered to be constitutionally suspicious until the late nineteenth century when states began to attempt to engage in similar regulation – then it is misleading to say that an aggressive scrutiny of such regulation was “part of the original Constitution.” If in 1800, say, had there been a knowledge of wetland ecology, or a desire to keep Lake Tahoe pristine, and local authorities had regulated property uses in order to safeguard those goods, there would have been no constitutional issue. Simply put, there was no right to compensation for lost economic value because of the reasonable exercise of local authorities’ power to provide for the public welfare. And this was several generations before the seductive lure of progressivism and the Regulatory Welfare State allegedly caused generations of deluded Americans (and intellectuals especially, in your account) to fall from the grace of a Lockean natural rights paradise.

If your claim is that you’re engaging in an act of restoration, it shouldn’t matter whether or not it was local, state, or national authorities that were engaging in this kind of regulation. I couldn’t find anything in your eminent domain / public use article that explicitly addresses this issue, but that’s not surprising since you’re hunting for other game there.

The additional reason to address this question is obvious: the approach to regulatory takings that you advance would be incredibly threatening to local authorites. And as I’m sure you’re also aware, local authorities should look upon an increased risk of regulatory takings lawsuits with dread because of their proportionately increased financial risk in the case of a judgment against them (which I have heard is not insurable). I take your point that the mere fact that your approach would be costly is not a decisive argument against it, of course. Nonetheless, I’m sure that local authorities will be happy to know that you are on their side in a truly restorative understanding that would exempt them from such additional financial risk. . .

Best,

Brett