THINGS I LIKE, PART V

Discussions getting on to the right track. Nathan Newman goes from Lochner to takings, here. Much more interesting than dismissing the debate as involving things that "merely offend Professor Marston's sense of political economy."

If you want to get really serious (which I also like!), check out GELPI. (Full disclosure: Anita works there.)

From GELPI's takings site:

The narrow constitutional protection the takings clause provides for private property interests hardly indicates any lack of respect for private property rights. Instead, it demonstrates the drafters' understanding that individual property rights must be defined in relation to the private property rights of all other citizens. And it reflects the conclusion that the definition of private property rights — and, as appropriate, the redefinition of private property rights over time — must generally be left to democratically elected representatives of the people rather than to the judiciary.

Advocates of the modern "takings" agenda go beyond the original understanding of the taking clause and Supreme Court precedent to argue that regulations which limit the potential value of land and other property frequently result in takings. According to this view, takings occur under a wide variety of local, state and federal rules — from zoning regulations, to historic landmark laws, to wetlands permitting requirements, to habitat protection measures, to cite just a few examples.

Philosophical opponents of government regulation, and interest groups which stand to benefit from this agenda, have seized upon the takings issue as a political tool for seeking to confine the sphere of democratic decision-making. If the public had to pay every time a government official enforced some rule or regulation, there would obviously be far less regulation; at the same time, however, other property owners and other citizens protected by environmental protection standards or other laws would suffer economic, environmental, and other harms.

Lochner-lite, Janice Brown's view, isn't offensive. It's wrong-headed. There's a big difference.