TAKINGS DIALOGUE, FINAL ACT?

Timothy Sandefur responds to my last takings post, here, with his usual analytic flair. He also provides links to what now seems to be our exchange in total.

I would like to make one final observation about the conversation. There is a big difference between thinking "in principles" and thinking from a particular principled framework. Mr. Sandefur is in possession of a very interesting theoretical framework derived from the thinking of folks like Richard Epstein; it is a framework that serves him well in his professional career as a lawyer interested in takings issues. But outside of the litigation context -- and in life generally -- it makes no sense to claim that a refusal to accept a particular theoretical context means a lack of a principled view on things. I'll admit that I'm not clear on my own property rights / regulation theory (I've never had to convince a court -- or myself -- that I should win a particular argument in this area), but it's at least clear to me that slavery does not equal criminal prohibitions on sodomy does not equal noncompensable regulatory burdens on landowners and land developers.

My own preference is for a theory of goods that is pluralistic, culture-bound, attentive to the variety of goods that people actually pursue and attentive to the multiple forums in which they pursue and vindicate their claims to those goods. Does that really put me in danger of having Big Brother steal my property and criminalize my sex life? Hardly. Indeed, posing the question in that way helps to highlight some of the interesting issues here, in my opinion.

There is a particular emotional appeal to libertarian views that has fascinated me for a long time, but it is an appeal that is complex and very subtle. On the one hand, the claim is made that there just are rights that are natural and that need to be protected. On the other hand, the primary evidence for the existence of these rights is that a refusal to acknowledge them will lead to overwhelming government power over the individual -- that such a refusal will be dangerous. The descriptive, almost metaphysical claim is intimately bound up with a forward-looking, predictive claim. I find this complex of arguments fascinating for a variety of reasons. The complex makes it very easy to slide from one type of claim into another without being fully aware that one is doing so. So when we start talking about regulatory takings, the discussion slides into whether or not I could effectively prevent a conservative legislature from punishing sodomy with criminal sanctions. The speechlessness that I often experience in such situations has less to do with the fact that I don't have a reasonably serviceable theoretical account of why land-use planning is fine and criminalizing sodomy is not fine, and more to do with the fact that I am taken aback at the sudden shift of theoretical ground. The fact is, outside of a conversation that shifts easily from abstract discussions of rights to detailed predictions about future use of government power, it is really hard to imagine seriously a situation in which these two issues are linked in this precise manner. I suppose we could give it a shot, though:

Billy: I would like to propose a bill that would criminalize homosexual sodomy, the Supreme Court be damned! [Note to reader: Fill in your favorite arguments in favor of such a bill here.]

Brett: Madame Speaker, I rise in opposition to the proposed bill. I think that it is not part of civilized life to be peering into people's bedrooms in order to make sure that they are engaged in the correct kind of sexual activity. Plus, such a bill is nothing more than an expression of animus toward gays and lesbians, an animus that I believe is ill-founded. [etc., etc.]

Billy: Madame Speaker, I would like to remind my honorable colleague from Oswego that in an online discussion with Timothy Sandefur, he argued that Tahoe-Sierra was correctly decided, thus proving that he thought that criminal prohibitions on sodomy were just fine by him, or at least by his principles, correctly understood.

The gallery: INDEED! THUS SAY WE AS WELL!

Speaker: There will be order in the chamber!

Brett: Have we all gone insane?

I just listened to the oral arguments from Bowers and Lawrence again, and even there, I didn't hear a lot about regulatory takings as an appropriate additional analogy to criminal prohibitions on sodomy (believe me, the ones offered are colorful enough). That might not be a fair example on my part; the Supreme Court is certainly not the only interesting forum for these issues, and the appeal of the natural rights approach rests on a broader invocation of the importance of establishing shared public conceptions of right that go far beyond the courtroom. Still, there is a virtue to the Supreme Court's approach here: it's hard to get a theory of property alone right enough for all cases, let alone a theory of right as such.

Probably my affection for Plato, Habermas, and Michael Walzer (not to mention some grad school teachers) has led me to attempt to be attentive to the ways that theoretical claims enter into real-life situations. I don't think that I've succeeded here at being attentive enough, but I thank Mr. Sandefur for engaging my posts and for providing a rich empirical record for future reflection on the phenomenon of constitutional argument.