THINGS I LIKE: DIALOGUE

[Note: in an effort to promote actual dialogue, I'm writing this post as a friendly letter addressed to my interlocutor, rather than as a post addressed to imagined readers whose opinions I am trying to influence. Judge for yourselves whether or not this is a good approach!]

Dear Mr. Sandefur:

I have enjoyed our friendly conversation on the subject of regulatory takings. As I noted in my last post, I think that you are using your blog for an important purpose: attempting to develop and present ideas at a high level of theoretical sophistication. The fact that I don't agree with your position makes the exchange more interesting for me than it would be if I were simply reacting to the views of an ideological compatriot. In addition, my (not so secret) hope is that I might actually learn something about libertarian views on regulatory takings, as well as learn something about the soundness of my own views. So, thanks for devoting some of your limited time to this common enterprise.

On to substance. As a preliminary matter, I fear that you may have misunderstood a few points from my last post, which was a hurried response to your detailed discussion on the constitutional foundation for a libertarian approach to regulatory takings. At the end of the post here, you contend that I argue that libertarian legal foundations such as the Pacific Legal Foundation are attempting "'to constitutionalize' protection for property rights." I apologize for any misunderstanding here. Property rights are in fact constitutionally protected -- here in the U.S. more so than in any other country on the planet, in terms of both scope and breadth, as far as I understand it -- and I did not mean to imply that libertarian legal strategists should shoulder that protection alone, as much as the process of legal advocacy might create the impression that such strategists are alone responsible for property rights protections. Clearly, there is a long history of such protection, and that protection serves important purposes that are deeply rooted in American culture. My point was more narrow, as can be seen from the full context of my remarks. I contended that PLF and IJ and others have developed an account of takings that would increase the protection of property rights beyond the point currently recognized in U.S. constitutional law, and that the central goal of these groups is:

to constitutionalize that additional protection, make courts the guardians of that protection, and, in the name of attacking what Mr. Sandefur calls the "Regulatory Welfare State," engage in a process of cutting back even the limited government regulation that exists in this country.

I hope that it is clear that pushing the law in one direction -- namely, in the direction preferred by the intellectual leaders of the resurgent property-rights movement interested in increased attacks on government power in the name of dismantling the welfare state -- is quite a different thing from protecting property rights pure and simple.

There is a deeper problem in the discussion here that our misunderstanding reveals. You have a developed account of property rights, one that is, in a cultural sense, not the accepted or consensus meaning in U.S. constitutional law, in high-level theoretical discourse on law, or in ordinary conversation. In fact, the main question around which our short conversation has circled has been the question of the appropriate definition of property rights in their relationship to constitutional text, judicial power, the police powers, the welfare state, and human goods such as sexual privacy and autonomy. This is a very interesting discussion -- and my suggestion that we continue it over bourbon here in Oswego was intended seriously, although, as I'll admit, it is rare for me to get out-of-town visitors here, and it will become even less likely as winter approaches. My basic sense is that these kinds of discussions are best pursued with a bottle of Woodford's Reserve on hand, though.

But we should try to agree on basic terms. For the purposes of the discussion, I propose that "property rights" be made the focus of a problematizing discussion rather than the staging area from which a rhetorical Feldzug might be advanced. Let me offer a second thought here as well. It seems to me generally true that as much as I want to reject the military metaphor here in favor of a friendly conversation, it is true that the condition of being at rhetorical loggerheads has its hermeneutic use. The experience tends to reveal something about the depth of the disagreement that serves as the background for any given serious discussion.

Clearly, here the gulf is quite wide. Where you see an unamerican, collectivist welfare state leviathan, I see the sum total of reasonable government regulation under modern economic and environmental conditions. Where you see a failure to compensate investors for the economic burden of development moratoria, I see a reasonable attempt to hold to the status quo while the appropriate regulatory authorities take the necessary, if messy and time-consuming, effort to formulate and enforce environmental standards (Tahoe). Where you see an attempt by the city of New York to impose the costs of a public good on unsuspecting investors and landowners, I see an attempt by the city to engage in historical preservation through appropriate means and without imposing enough of a burden to trigger constitutional concerns (Penn Central).

Unfortunately, the world of work intervenes and I should close at this point. Still, I hope that we can continue this discussion in a straightforward and mutually beneficial manner, and one in which, as I noted at the end of my post here, meaningful distinctions don't get lost.

Best,

Brett Marston