TIMOTHY SANDEFUR, SAN REMO, LAWRENCE, AND TAKINGS

Timothy Sandefur has an interesting response to my post on Janice Rogers Brown's dissent in San Remo. His argument has three parts. First he argues (or implies) that a passage from Hayek's Constitution of Liberty provides the best approach to the question of the relationship between city planning measures, property rights, and constitutional law. Then he implies that there is no significant difference between the outcome in Lawrence and Justice Brown's preferred outcome in San Remo, because both outcomes would be justified by the argument that

government has no authority to deprive us of our rights while protecting (not providing!) the health, safety, and welfare

Finally, he cites a passage from a fun Supreme Court case coming out of Connecticut (Lynch v. Household Finance Corp.) in which the more liberal members of the Court wrote some stirring language about the fundamentality of property rights in the context of interpreting the Civil Rights Act of 1871; the immediate result of the case -- resisted by two of the more conservative justices, plus Blackmun -- was that a relatively poor individual was allowed to continue with her class action suit against Connecticut sheriffs and financial corporations who used a Connecticut garnishment statute to get at the bank accounts of private individuals.

As for his first point, Sandefur's quote from Hayek is a general attack on what Hayek calls "expropriation below fair market value." This as a bit of a red herring, at least as far as the current state of takings law -- and nearly all the interesting questions related to takings -- is concerned. In San Remo, the hotel owners argued that the legislative scheme that required a fee to be paid if a hotel owner switched from residential use to tourist use created a taking and that courts should engage in heightened scrutiny of the scheme because of a line of Supreme Court cases that used such scrutiny in other zoning contexts (although those cases involved administrative decisions rather than broadly applicable laws). The "expropriation below fair market value" question isn't really reached here at all; what you had was a kind of zoning requirement and a fee that the hotel owners paid in lieu of holding to the requirement, in a manner outlined by law. [Beyond San Remo, though,] in any takings case, property owners have an incentive to narrow the issue to the particular aspect or area of the property right that they claim has been "taken" without just compensation; they try to say that a particular part of their property has been "expropriated," to use Hayek's term, and that compensation is due. I take it that property rights advocates generally want to allow property owners to engage in this narrow definition of the property right in order to be able to magnify the effects of the government action and in order to make a takings claim.

Two problems arise here if the court allows property owners to define the "denominator" and thus magnify the effect of the takings claim. First, it's just plain weird. Property rights exist in a social context. At any given point for any given part of a property right, government tells us that we can and can't do certain things with that property; nearly all government action has some effect on some part of some property right that we own. Sometimes there is, in fact, a genuine case of expropriation, and government should be required to compensate the owner in that case, as the text of the 5th Amendment requires. But to expand the definition of "taking" to include any effect that government action has on your property right is a kind of humpty-dumpty act. You can even say this and still argue about how much of any given property right can be affected without triggering the compensation requirement, and, indeed, many of the interesting debates in takings law revolve around this question. But to imply, as Sandefur does with his Hayek quote, that any imposition of any cost [is a taking] -- irrespective of the relationship between that cost and the sum total of the value of the property right in question, defined with a broader and more intuitively appealing denominator -- is to take a controversial position in these debates without explicitly acknowledging it as such. I think the position is weird.

Secondly, such a judgment on the denominator issue would overburden the courts, and the courts are afraid of this happening. Takings cases are messy, fact-intensive, expensive, and complicated. Precedent is unclear and conflicting. And there are serious ideological battles going on in the takings field, as Justice Brown's opinion shows. There's no reason to care about overload in the courts if you think that the issue is more important than the mere practical realities of the administration of justice. But combine the complex nature of these cases with the fact that almost all government action could end up coming under question with an expanded definition of takings, and you have a pretty clear course of action.

As for Sandefur's second point -- if you like Lawrence, you have to like Brown's dissent in San Remo -- we're never going to agree on this one because the difference between our positions runs quite deep. Just because you can conceivably mention sodomy laws and zoning ordinances in the same grammatical sentence -- even what you might call the same "conceptually grammatical" sentence -- doesn't mean that they have any deep relationship to one another. It seems to me that zoning ordinances and other regulations of property are essentially tied up with the function of government in the modern economy, whereas prohibiting sodomy has no such relation to the functions of government.

As for Sandefur's third point -- the quote from Lynch -- it's worth some more thought, which I'll save for a later date.

NOTE: I corrected some minor spelling and grammar problems in this post.