REGULATORY TAKINGS

Timothy Sandefur has written a long an interesting post defending his view of regulatory takings, here.

Here are a few thoughts. First, I'd like to echo the Curmudgeonly Clerk's recent post . Mr. Sandefur uses his blog for an important purpose and one that I find generally exciting: trying to work out serious issues at a high level of theoretical interest in a way that goes beyond the constraints of the traditional media.

Second: Mr. Sandefur gives a crucial quote from Madison on the definition of property, from this passage:

This term in its particular application means "that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual."

In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.

Madison then goes on to argue that this "larger and juster meaning" encompasses thoughts, opinions, and generally all of the important things that pertain to individual identity and self-development. But he ends the passage with a crucial set of qualifications:

Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.

Where there is an excess of liberty, the effect is the same, tho' from an opposite cause.

Madison spends a great deal of time elaborating what an "excess of power" might look like with respect to government, and it is here that Mr. Sandefur links up with the eighteenth century. I would want to focus on an "excess of power" on the part of corporations as well (and some libertarians have picked up on this argument, when they engage in litigation attacking the abuse of the eminent domain power to benefit corporations, for example; here the "public use" requirement of the takings clause is the focus of their efforts).

By and large, though, there is no "excess of power" with respect to government's interference in property rights in the contemporary U.S. The legal system of this country already affords more protection for a wider variety of property rights than anywhere else in the modern industrialized world, and probably anywhere else in the world as a whole, as far as I know (I'm willing to be corrected on that, though!). The goal of the interpretation of regulatory takings advanced by Mr. Sandefur is to add even more protection -- indeed, 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. My basic sense is that the purveyors of these arguments would do well to heed Madison's hint that "an excess of liberty" can be disadvantageous to rights, broadly understood. More later.

REALITY CHECK

Read this and then remind me again why Dean was wrong about the south (empirically, not strategically, which is another question entirely; he may be wrong strategically precisely because he was right empirically).

I made the same point here and Jim has some good responses in the comments section, but they mostly go the point of strategy, which was not the only thing that Zell Miller cared about. He tries to argue that Moore and his supporters are not the face of the south. They're not all that's going on in the south, of course, but it's a pretty big story nonetheless. See also this WaPo story on the Louisiana governor's race.

FILIBUSTER LAWSUIT

So now the filibuster lawsuit seems to be a reality. Good God. Here are some points from a rambling post ("Slouching toward the courtroom") I wrote on this in April:

[T]he hypocrisy involved in such a suit would be staggering: Republicans have gotten involved in the nominations fight with Democrats because of a professed belief that courts have been too powerful and activist in the first place. One should put this question to the Senate Republican caucus: Is the political question doctrine now itself a heritage of judicial activism (namely, activism with respect to powers of judicial self-limitation)? A lawsuit would show that the Republicans want to have their cake and eat it, too, by attacking judicial power when it suits them, but also calling upon that power when it suits them. Some have said that Bush v. Gore shows how uncommitted Republicans really are to judicial self-limitation. It would be much harder to counter such a claim if Republicans now sued over something that is arguably a matter of the Senate's constitutional power over its own proceedings.

[. . .] Such a suit would be [an] attempt to use the courts to put political pressure on an opposition that is using tactics which are frustrating but arguably allowed by Senate custom, practice, rules, and constitutional text. Republicans might want to roll the dice at the judicial crap shoot table even though their legal advisors will tell them that a suit is unlikely to succeed. They may also wish to initiate a suit for the headline effect: "Senators Challenge Constitutionality of the Filibuster" or "Senators Seek to Counter Obstructionist Democrats" or something like that. My experience teaching separation of powers cases tells me that the political questions doctrine in such cases is not palatable to most of my students. Imagine the headlines in the conservative press when the Republicans lose: "Judges Throw out Suit (subtext: on Some Silly Narrow Ground that Shows How Corrupt They Really Are)."

So, my recommendation: Republicans, heal yourselves

WEB POLL AS PARADOX

"Do you vote in on-line polls?" 20% said "no" at the Globe and Mail.

FAREWELL, MINISTER

Jean Chrétien got quite a send-off from his party tonight in Toronto: Oscar Peterson and Paul Anka were part of the festivities, which also included series of personal tributes from a variety of folks.

Paul Anka did a version of My Way that managed to mention both marijuana legalization and gay marriage in a lighthearted fashion. I love Canada.

My favorite quote from the Prime Minister this evening, from the Globe and Mail article (here it is again):

"Canadians should beware of those on the right who would reduce taxes ... [and] weaken the national government because they do not believe in the role of government," he said.

"My friends, my fellow Canadians, my fellow Liberals, if you remember only one thing that I say tonight, remember this: We must never lose our social conscience."

What a man.

YOU SPIN ME RIGHT 'ROUND, BABY, RIGHT 'ROUND, LIKE A RECORD, BABY. . .

Larry Solum raises again his powerful arguments concerning what he calls the "downward spiral of politicization" in the judicial nominations process, here. Quite apart from the fact that his argument is analytically profound, the analysis that Solum has provided has also been influential among Senators and partisans themselves; the term "downward spiral" has found its way into the high-level public debate on this issue. And several folks have added their thoughts on Solum's last post as well: Matthew Yglesias contests the relevance of Solum's formalism / realism distinction in terms of judicial outcomes, here, and Professor Bainbridge responds with a call to re-empower the legislative and executive branches.

The final passage of Solum's argument is worth some reflection:

The bottom of a downward spiral of politicization is a thoroughly politicized judiciary. We know what that looks like. It exists in odd corners of the United States, where lawyers know that winning--even in a run-of-the-mill tort case--is almost entirely a function of how much you have contributed to the local political machine. A thouroughly politicized judiciary is the norm in much of the third world, and the result is that the transparency required for well-functioning markets cannot be achieved--at enormous costs in human welfare. In a thoroughly politicized judiciary, every case is a patronage opportunity or a chance to score political points.

Rick Hasen notes that Prof. Solum appears to conflate ordinary high-level ideological disputes on the Supreme Court with "corruption." I would agree with that claim. I would also like to highlight the two other claims that Solum raises here: that the end result of the downward spiral is a "politicized judiciary" like "much of the third world" has, and that such a judiciary would create uncertainty in markets and ultimately reduce economic growth.

As for the third world: Solum is probably thinking about places like Kenya and Bangladesh, where judges have been accused of taking money directly from plaintiffs in return for a favorable outcomes. The Bangladeshi judiciary is in fact notoriously corrupt, but not all judiciaries in the third world are as bad as in Bangladesh, of course, which consistely scores the worst in global corruption indices. In India, for example, the appellate bench is not known for corruption. Quite aside from the corruption question, one way that the Indian constitution combats the politicization of the judiciary is the use of mandatory retirement ages for members of the Supreme Court (65) as well as specific qualifications that nearly guarantee that people are quite old once they get there (5 years service on state high courts or 10 years at a High Court bar or on other courts; the qualifications are not exclusive but they have become the norm in nominations). These qualifications concern the Indian Supreme Court and not the lower courts, but, in general, the example of the Indian Constitution could be instructive for us: shorten the tenure of judges and they will be less of a partisan prize.

In his reference to markets, Professor Solum expresses a broader cultural anxiety and one that he has expressed on past occasions as well, namely, that what is distinctive about the U.S. is a commitment to the rule of law (non-corruption in judges as part of that commitment), and that a politicized judiciary is a broad threat to the existence of the rule of law as a widely shared cultural norm. The reference to well-functioning markets is only a part of that fear, however. The narrow market transparency issue is not really a problem in the U.S., I'd say, and is unlikely to be one in the future, at least with respect to the question of ideological appellate judging. The U.S. is still the country in the world with the most well-developed system of protection for property rights, and, if the trajectory of groups such as the Pacific Legal Foundation and the Institute for Justice is any guide, the future politicization of the judiciary is likely to result in an even more fully constitutionalized protection of property -- a direction I find extreme, as I've noted below, but it's still one that, paradoxically, is likely to assuage this particular fear expressed by Prof. Solum.

In Solum's latest post, the market transparency issue seems to me to be a proxy for fears regarding the fate of rule of law in general. My sense is that this concern misses the mark. The anthropological work of Patricia Ewick and Susan Silbey in the Common Place of Law seems to indicate that the rule of law exists in public consciousness in a complex cultural space that transcends the boundaries set by the categories of formalism vs. realism. Ewick and Silbey argue that people have quite complex views on the rule of law, based partly on the cultural scripts out there and their own experiences with the legal system. What people think about the appellate courts is not directly addressed by Ewick and Silbey, but I would hazard a guess that it comes as no surprise to people that appellate judges bring to the bench complex approaches to controversial issues. Terri Jennings Peretti argues that public opinion research seems to reveal a basic "realist" approach to appellate judging among the broader public, when they pay attention to the appellate courts. In other words, the American people can probably live with the same insight that the legal realists brought to high-level theoretical discourse.

FRIST'S TRICKY WEB NUMBERS

Now the folks at Reason have noted that Bill Frist's web lackeys fooled around with his spot poll numbers on judicial nominations last night. See Julian Sanchez's post here.

MORE: Senator Lautenberg picked up on Frist's mendacious web poll as well, around 2:52 p.m.

SENATOR ALLEN

Senator Allen, R-VA: ". . .billions of new defici. . .dividends. . ." (around 11:15 p.m.).

OK, I'M CHILDISH

MORE: For those of you who want the historical reference: go here.

PROUD TO BE FROM CONNECTICUT

Senator Chris Dodd makes me proud to be from Connecticut.

Oh, Lord. Senator Dodd gives us a brilliant example of stirring rhetoric, and Senator Rick Santorum brings a visual aid with numbers on it.

We are worse than our fathers, who were worse than their fathers before them.

MORE: OK, there are lots of visual aids in the Senate tonight. My own stunningly partisan version can be found immediately above.

THOMAS MICHAEL CORCORAN

Good stuff, here.

BIG BLOWBACK POTENTIAL

The Republican leadership of the Senate is trying to raise the salience of the judicial nominations issue. Dems are responding by piggybacking on any additional publicity and proposing that the time be used for serious legislative business. I hope that the news accounts make the Democratic response clear. The sound of a half-dozen Republicans objecting as Senator Levin (D-MI) tries to move to legislative session in order to deal with unemployment legislation should be music to Democratic ears.

THE HIP BONE CONNECTED TO THE LEG BONE (OR, HARD TO BE POSITIVE ABOUT THIS, PART II)

I hope that the leader of the Senate Republicans (M.D.) knows more about anatomy than he knows about what is "in the Constitution." Here's a recent poll question from his web site:

Should the President's nominees to the federal bench be allowed an up or down vote on confirmation as specified in the Constitution?

The "no's" have it, partly because Atrios called attention to the poll.

The problem with the question is that it signals a woeful ignorance of what is actually "in the Constitution," and this from the person whom Senate Republicans chose to be their leader.

Tell me, Mr. Frist, where does it "specify in the Constitution" that nominees to the federal bench should be "allowed an up or down vote." And if you find the passage where it "specifies" an "up or down vote," then make sure that you're (a) not high, (b) not reading the GOP talking points on judges, and (c) not tired and delusional from pretending to debate judges for 30 hours straight. The Constitution does not specify precise decision rules about how judges are to be confirmed. Sorry, Mr. Frist. It ain't there.

Frankly, I just love it when people who fill the air with fine phrases about "following the law" can't even state with any degree of accuracy what the law actually is. In fact, I think that this episode gives a clue as to what "following the law" means for Frist and his fellow partisans: following the rules that you wish were actually written down somewhere but aren't, and then fudging the difference between the two conditions.

Frist is a fake textualist. Oh well.

MORE: This post wallows in the dubious pleasure of pointing out the errors of others. But there's a serious point here that I hope hasn't been missed. Next week I'm gearing up to discuss some landmark abortion cases in my Constitutional Law class. If one of my students were to say, "abortion rights should be protected, as the Constitution specifies," I would ask them where the Constitution specifies that particular right as deserving of protection. Similarly, when we talk about Lawrence, if one of my students were to say, "sexual privacy should be protected even in unconventional forms, as the Constitution specifies," I'd ask the same question.

Conservatives would immediately recognize these areas of constitutional law as areas that involve judicial interpretations of "liberty," interpretations that they believe have strayed too far from the text, or from the intent of the framers, or community opinion -- take your pick. But when it comes to attempting to make an argument that is in their own electoral ambit, the Senate Republican leader can't even state the textual issues accurately. (I should say also that if a student were to argue along the lines of Timothy Sandefur, and say that when government regulates your property and causes you an economic loss, then you should be compensated for this loss, "as the Constitution specifies," I'd make the same point.) This is not to say that there aren't arguments to be made concerning an "up or down vote" requirement implied by the text, or by the history of appointments, Senate practice, the intent of the Framers, or what have you. I think that these arguments fail. However you stand on that issue, though, to say that the text "specifies" such a vote is to attempt to tap into a powerful source of legitimacy in public discourse (and perhaps this legitimacy with respect to the text is more pronounced there than in professional legal discourse), namely, the clarity of constitutional requirements. What's important about this issue is that a reference to the text alone obscures the inevitable acts of interpretation, judgment, and considerations of current ends and means that always goes into attempts to make a claim on constitutional meaning. It's a heck of a lot easier to see those acts when they result in arguments that you find unpersuasive. Such a frail thing is reason.

The fact that both Senate Republicans like Frist and the broader public influenced by opinion leaders believe that the text "specifies" a requirement of an "up or down vote" could be read as a sad indication of public ignorance of what words are actually present in the constitutional text itself. For educators like me (and people who care about the possibility of constitutionalism as a practice of constraining power through written texts), this ignorance might be lamentable because it shows the inevitable imperfections of public discourse. This lament could also be described in a less charitable fashion as mere pedantry. Perhaps it is.

Nonetheless, my point is that the text alone won't save you on most important issues. There's no use hiding from that fact. Unless, of course, you hope that no one will notice what you are doing. This is generally not a controversial point among experts, Hugo Black and his famous statement "no law means no law" (for 1st Amendment purposes) excepted. I'm not sure that Bill First should give a flying hoot what I think about a silly little constituent-pleasing poll on his web site. The poll is still misleading, even if it's midleading in ways that I think are typical for certain kinds of Republicans, who want to take the constitutional high ground of clarity and who even appear to lie about their ability to do so. Perhaps they're even lying to themselves? Or perhaps they're just not careful, or not interested in the details here. I don't know. I suppose I'd prefer to believe that they're simply ignorant rather than careless or mendacious for rhetorical purposes. I'm a romantic at heart, I guess.

MORE: What bad internet behavior: the poll is now gone, as Atrios notes here, and in its place is a more interpretively defensible (if still loaded) version of the question.

MORE: You can read the old version of the poll for now, I hope, here.

MORE: Nope, sorry. The results are here but the question has vanished. If history isn't in your favor, even if it's just from this afternoon, erase it and put something else in its place.

MORE: Oh my God. They didn't like the result, so they changed the question to mean precisely the opposite. Now the question is:

Should the Senate minority block the body's Constitutional duty to provide the President's judicial nominees with an up or down vote?

But they've kept the same vote totals.

DOWNWARD SPIRAL OF POLITICIZATION?

Josh wants to know what can be done to "stop" the downward spiral in the politicization of the judicial confirmation process (the term, and its defense, most clearly explained by Lawrence Solum; go to his site and follow your nose -- you won't be disappointed!).

My responses:

• Do nothing. There is no crisis; the idea that the nomination process is broken is at best a mischaracterization and at worst a Republican complaint (that they are now suddenly discovering after engaging in obstructionist tactics under President Clinton). Most judges are being confirmed. No serious damage is being done to the judiciary. The political incentives -- razor thin partisan balance, increasing ideological polarization, and the plum prize, being able to stack the judiciary -- guarantee a public battle, but there's nothing really wrong with that. In fact, it might be good, since it highlights the long-term political impact of judicial nominations, although the effects of judges should not be overestimated.


• Ditch lifetime tenure. That will remove the main reason for getting excited about nominations, namely, the possibility of entrenching party preferences -- and dislodging those entrenched by previous administrations. Lifetime tenure is a bad idea when judges are not impartial on burning public issues but are instead articulate defenders of recognizably partisan ideologies (even if they are refracted strangely through the medium of the judicial craft). An unlikely prospect, however, since the hurdles to formal constitutional innovation are quite high and there's not much movement on this issue. It would also be resisted by federal judges and law professors who could muster impressive reserves of cultural capital.


• Set up a bipartisan commission to select nominees. This is essentially Schumer's proposal (or a version of it) and it has been rejected (wrongly in my view) as unconstitutional by the administration and by the newly minted defender of GOP constitutionalism, Senator John Cornyn. The partisan incentives aren't right here, either: commissions are more likely to be created when (a) unpopular decisions need to be taken (as in the Postal Rate Commission), or (b) some kind of bipartisan approach is politically popular (as in the election reform commission created after the election debacle in 2000). Neither of these conditions are met here. Republicans love to bash the judiciary for being too "liberal" and love to nominate ideological conservatives whom they then describe as simply "following the law," which their base knows to interpret against the background of current GOP critiques of civil rights protections, abortion rights protections, environmental regulations, and so on. Democrats also love to attack judges who are extreme according to their constituencies, although they have an incentive to engage in bipartisanship if they thought they could have more influence over the process that way. But there is really no political incentive for the parties to agree on a bipartisan approach.

MORE DANGEROUS THAN A RUN ON A HALF-PIPE

Poor Christian Slater.

SANDEFUR ON TAKINGS, OR, WHY YOU MIGHT CARE ABOUT THE ARGUMENT THAT RECENT LANDMARK TAKINGS CASES HAVE BEEN WRONGLY DECIDED

It's not every day that I get to trade posts with someone who actually writes (or helps write? or sits next to people who write?) amicus briefs in ongoing, cutting edge takings cases such as San Remo. So I'm grateful that Timothy Sandefur has responded so speedily and directly to my somewhat incoherent and admittedly incomplete post from this afternoon.

Let me sum up his response; I'll italicize what I take to be his views. Police powers are properly restricted to protecting rights. The provision of public goods, however, is not a proper exercise of police powers, although "the left" (and once again I'm an honorary member!) makes the error of confusing these two basic categories. When government provides public goods, it "must" "pay compensation" to those individuals whose property is taken in order to provide that good.

This clean distinction between the exercise of police powers and the provision of public goods does not have a firm basis in current takings law, as Mr. Sandefur acknowledges. Indeed, it is part of the agenda of people like the Pacific Legal Foundation to make this distinction part of takings law; as far as I can tell from my admittedly limited reading in this area, Justice Brown is right smack in the middle of the ranks of those who would advance this kind of argument, although, as always, the devil is in the details and I don't want to make precise claims about the positions of PLF or Justice Brown in this area when I don't have the facts at hand.

Why is this distinction important? Let's consider two cases that Mr. Sandefur believes are wrongly decided (indeed, he calls the second of them "utterly unprincipled"): Penn Central and Tahoe-Sierra. In Penn Central, the owners of Grand Central Station in New York wanted to plant a multistory office complex on top of the building. You can get a sense of the plans from the thumbnail at this page. NYC's historic preservation ordinance requires owners of designated buildings to get prior approval for plans to alter the existing building (among other things). There is a procedure by which the owners can contest the designation of a building as an historical landmark but the owners of Grand Central did not avail themselves of that option. The historic preservation board turned down the renovation plans. The owners of Grand Central sued, claiming that their property had been "taken" because they could not profit from contracts entered into in the planning phase of the office complex. The Supreme Court did not accept that there was a taking here for a variety of reasons, including the fact that the company still retained lucrative transferable development rights and could still earn a reasonable return on the investment in the property through ongoing uses. In addition, the majority opinion contains the following lines that I'm sure make Mr. Sandefur's blood pressure rise:

Unless we are to reject the judgment of the New York City Council that the preservation of landmarks benefits all New York citizens and all structures, both economically and by improving the quality of life in the city as a whole - which we are unwilling to do - we cannot conclude that the owners of the Terminal have in no sense been benefited by the Landmarks Law. (135-6)

In other words, not only did the owners of the Grand Central terminal retain substantial economic benefit from their property; they also benefited from the historic preservation ordinance in the same fashion as all other citizens. In a footnote, the Court also mentioned but did not explore in detail the idea that much of the value of Grand Central Station -- and thus at least some of the profit that the owners gained from the station -- was actually "publicly created"; I mean, it's New York City, after all, a common project of all citizens of New York across the ages. My sense of things is that this idea of publicly created value is part of our cultural understandings of property rights and the obligations that landowners of landmark buildings, at least, have to the public.

But Mr. Sandefur presumably would have us believe the following about NYC's historic preservation law: whenever the law is applied so that it prevents an economically lucrative use of the property desired by the owners, New York City has "taken" that part of the property and must compensate the owners. This would presumably be true regardless of other economically viable uses that the owners retain. As long as one economically viable use is desired by the owners -- and, essentially, as long as a majority of judges on a given court are not persuaded that the exercise of the police powers here aim to protect "rights" rather than merely provide a public good -- then those owners deserve compensation. Finally, courts should enforce such a compensation rule as a constitutional principle, rooted, presumably, in some understanding of text, structure, and perhaps a reading of original intent (although I'm unsure on the precise basis that Mr. Sandefur prefers).

In the real world, this means: Bye-bye, historic preservation laws. Oh well! It's only a "public good," and one that is likely not to have a high priority during hard economic times.

In what sense has NYC "taken" the property owned by Penn Central Corp? It hasn't occupied the property; it has merely prohibited certain uses of it. The example that Sandefur gives of the government taking your house to build a post office (or, more colorfully, stealing the bed from the room in which you are engaging in private, consensual acts of sodomy) is pretty far away from this issue. Folks like Justice Brown (and Sandefur) want to blur the difference. Seems like a shell game to me, albeit one that is done through the means of an interesting theoretical account of the issues at stake.

But if you thought that only historic preservation laws were at issue here, then take a look at Tahoe Sierra from last year, a case that Mr. Sandefur calls "utterly unprincipled." The issue in the case was whether or not a temporary development moratorium was a "per se" taking, meaning that no additional factual information would be necessary for the courts to determine that a taking had occured, and that, as the summary puts it, the Court should announce a rule that "any deprivation of all economic use, no matter how brief, constitutes a compensable taking." Note again that we're not in the realm of the government taking away your bed; instead, we're in the realm of government issuing a development moratorium that was temporary, in place in order for the relevant environmental authorities to do such things as determine the best way to preserve Lake Tahoe's pristine clarity from the effects of development.

Again, presumably Mr. Sandefur would argue that because no one's "rights" are being protected by the planning agencies (although the catalogue of rights would be important here, I suppose) developers are entitled to be compensated for the temporary deprivation of economic value that they suffer when they can't build on their land during a period of a few years. Instead, because the planning agency is merely protecting the public good of Lake Tahoe's pristine clarity, it should have to pay those developers for the privilege of stopping development that they want to pursue.

In real world terms: bye-bye Lake Tahoe as we know it. Oh well! The lake's clarity only a public good, anyway. One tactic with respect to this case is to argue that the moratoria really wouldn't prevent harm to the lake's clarity, simply as an empirical issue; but the basic argument would have to hold even if it were the case that the lake lost its clarity, unless you can develop an account of "rights" that include "a right to enjoy a clear Lake Tahoe," something that I might be happy with but I doubt Mr. Sandefur would be!

Note in particular that we are not just talking about whether or not government desires to physically occupy your property for some vague purpose not rooted in the language of rights and doesn't want to compensate you for it. Instead, we're talking about the attempt by PLF and other pressure groups to create a body of takings law that can be used by corporations to threaten localities with expensive, time-consuming, fact-intensive lawsuits if they try to engage in land-use planning that the corporations think will reduce the returns on their investment.

I think that there are a lot of really interesting issues here, and clearly Mr. Sandefur knows more about these cases than I do and has a crisper theoretical account of the boundaries of the police powers. I prefer historical accounts. That's part of the reason why I have no problem with saying that it used to be the case that state power was used systematically to mark heterosexuality as the preferred sexual orientation, but that this is largely no longer the case now in what we call the civilized world. I would say that instead of putting the burden of proof on me to say why state criminal prohibition of sodomy is different from temporary development moratoria for the purposes of engaging in sensible environmental regulation, or historical preservation ordinances designed to protect our most famous city's architectural heritage, the burden of proof should be on those who say that these things are the same in the decisive respect, namely, that they represent a use of state power to curtail the rights of the individual. I mean, just read this last sentence once again and tell me straight up whether or not the comparisons suggested by Mr. Sandefur pass the smile test. If I'm wrong, have a drink of good Kentucky bourbon and then return to the issue. If I'm still wrong, come to Oswego and I'll buy you a bourbon and we can chat about it.

That doesn't mean I won't think about it in the meantime and maybe give a better answer. It does mean that I'm admitting that I'm basing my reactions primarily on my intuitions about the nature of various goods that people pursue in life. If that's too fuzzy, at least it has the virtue of picking up the texture of existing goods actually pursued by government (and actually recognized in the broad outlines of constitutional law) instead of flattening them into contestable categories that are then made into the basis for a broad jurisprudential reform program that will have consequences entirely unidesired by many citizens.

MORE: There's no good late night post without a neologism or spelling mistake, and the last line of this post contains both in the same word! I meant, "entirely undesirable for many citizens."

MORE: Mr. Sandefur has promised a longer response, but lays down one principle:

For now, I will add only this: It is not a valid argument against the Constitutional requirement of just compensation to say “But we can’t afford to pay people for the things we take from them!”

Fair enough, as long as we are clear on the terms (and haven't hidden anything interesting in the term "requirement" and "take"). The mere fact of some dimunition of value is also not a sufficient argument to show that there has been a taking in a constitutional sense, either. Comparing a temporary development moratorium to a permanent physical occupation is an attempt to evade the important threshold issues -- as if government's saying that you can't put your bed on your roof and subject your neighbors to the sight of your (now no longer private) sex acts is equivalent to taking away your bed entirely. In the free speech context, such a comparison would be like describing a time, place and manner restriction as a ban on speech. Meaningful distinctions -- and the relationship between the rights holder and other rights holders -- would be lost.

A LITTLE SPECIALIZED, BUT STILL INTERESTING

Title for this German language blog: "Against Student Fees in Hessen." And so much more. . .

*HA HA*

Check it out. Another installment in the ever-popular "church sign series." From Kermit the Blog.

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.

THE PREZ AND THEM

Patrick Belton has some world reactions to Bush's NED speech, here. Below, you'll find some more.

German-language reaction to the President's speech at NED last week has been fairly critical, although the Swiss are willing to express support for Bush, as usual.

The Neue Zuercher Zeitung has a positive article titled "Bush supports democratization of the Orient," here. NZZ argues that Bush's omission of direct criticism of Uzbekistan ("one of the most repellant dictatorships in the world") leaves him open to the familiar charge of hypocrisy when strategic interests clash with his avowed preference for democracy. Nonetheless, NZZ sees the speech as an expression of a change of view in Washington, namely, "that support for friendly regimes -- in Cairo or Riyadh, for example -- will not buy long-term stability." The NZZ piece is a news item and not a commentary, but the coverage is positive.

The Frankfurter Rundschau's coverage is more critical of Bush. In an editorial titled "George Ronald Bush," Rolf Paasch writes off the speech as a "domestic political attempt to place the current difficulties in Iraq in a more optimistic context." Paasch counsels his German readers not to expect that Bush's "electoral strategy" -- "put on the broad cloak of his pre-predecessor and work for an improvement of the situation in Iraq" -- will fail; apparently, Paasch thinks that the German press has been underestimating Bush's re-election chances by portraying him as inept and bumbling. The Rundschau also has a piece filed from Cairo the headling of which implies that the press in the Middle East has reacted with "skepticism" to Bush's speech ("Arabs hear 'Blabber'" [ less harsh in German, where the word I've translated as "blabber" is etymologically related to the word for "speech"). Nonetheless, the piece also contains a quote from Gehad Auda, an Egyptian academic, who says that "there is a great need for more extensive democratic reforms in the entire near east." The Rundschau's report of the speech itself decries the lack of concrete proposals for working toward Bush's stated goals.

Financial Times Deutschland is schizophrenic in its approach. Its article is titled "Bush's beautiful empty words," but the emphasis is probably on the word "beautiful." Here is the concluding paragraph:

"In Iraq the Americans are at a dead end, politically and militarily. An exchange of troops in the next year will only be accomplished with much work. When Bush reminds us of the Berlin air lift of 1948, that's a really important signal. Nothing would be worse than an excessively hasty retreat from Baghdad. A central building block of the U.S. strategy seems to be the principle of hope, however. If Bush doesn't put more effort into his grand project, his idealism isn't only naive -- it's very dangerous."

In Irak stecken die Amerikaner militärisch und politisch in einer Sackgasse. Nur mit Müh und Not kann der
Austausch der Truppen im nächsten Jahr bewerkstelligt werden. Wenn Bush nun an die Berliner Luftbrücke von 1948 erinnert, ist das zwar ein wichtiges Signal. Nichts wäre schlimmer als ein überhasteter Abzug aus Bagdad. Ein zentraler Baustein der US-Strategie scheint jedoch weiter das Prinzip Hoffnung zu sein. Wenn Bush sich nicht stärker für sein großes Projekt engagiert, dann ist sein Idealismus nicht bloß naiv - sondern höchst gefährlich.

An interesting tidbit: the french-language Al Bayane (Morocoo) notes that Bush mentioned democratic progress in Morocco specifically, and discusses the follow-up comments of the U.S. ambassador there.

Jack (who happens to work at NED) asked me what I think of the President's speech. I'm a little unsure about the historical parallels that Bush draws with the cold war. One main problem is that our alliances with various undemocratic regimes in the region were a part of our cold war strategy, and since the cold war is presumed to have been a victory, it's a little hard to say that alliances with undemocratic regimes didn't purchase long-term security in the terms within which that security was viewed during the cold war. And for all of the honoring of Ronald Reagan, he was not particularly concerned with criticizing repressive regimes as long as they were anti-communist; viewing Reagan as a hero in the long-term struggle for "freedom" is a continuation of the cold war lens that we're supposed to reject when we allow ourselves to criticize "sixty years" of accomodating dictatorial regimes. Aside from the case of Uzbekistan, the U.S. has continued the cooperation in some pretty unsavory circumstances. For all of the recent criticism of Syria, the U.S. was more than willing to deport individuals there after 9/11 with the knowledge that security forces there would engage in torture and -- did the U.S. perhaps hope this? -- perhaps extract information that could lead to the prevention of terrorist attacks. This is the case with Maher Arar, the Canadian-Syrian dual citizen whose recent account of his torture over the past year in a Syrian jail has shocked the Canadian press and also managed to trickle into our own media landscape.

I'm all for pressure on states to become more democratic. I really hope that the effort in Iraq succeeds, even though I was unsure about the case for war. Like Josh Chafetz, I think that the jury is still out with respect to the success or failure of American policy in the Middle East. By the way, if you missed the Fresh Air interview with Nouman H. Shubbar, a Philadelphia police officer originally from Iraq who helped train Iraqi policemen recently, listen to it now. Frankly, the interview gives the lie to that boring, ignorant, and politically motivated line about NPR having a liberal bias: it is an encouraging story of someone from the states attempting to help out Iraqis -- and of Iraqis being willing to take the help and thankful for the release from the tyranny of Saddam Hussein. For more on Shubbar, see this Philadelphia Inquirer article.

So, even though my instinct is to be critical of Bush and his policies, I still think that there is reason to be hopeful that the administration will live up to its stated promises here. In all honesty, if a Democrat were in the White House, I'm pretty sure that I would be making the same arguments with a little more enthusiasm. And if we had invaded the Congo to prevent civil war there and help establish democracy, I would be an unequivocal supporter of the invasion, so even though the administration has not been up front on every aspect of the Iraq war (and has bungled many aspects of it), I still hope that we don't pull out too soon.

On the question of the broad strategy of promoting democracy in the Middle East, though: the devil is in the details. I'm willing to wait and see what those details are. If they involve ticking off Turkey by placing a higher priority on graduation ceremonies than historic NATO meetings, or cooperating with Syria in the torture of terror suspects, then I'm not entirely sure about the broader commitments. I'm willing to wait and see, but I'll still vote against Bush next year, regardless of what he does on this front.

SAN REMO AND JUSTICE BROWN

Those of you who really want a taste of Justice Janice Brown in action should read her dissent in the California Supreme Court takings case San Remo Hotel v. City and County of San Francisco (27 Cal.4th 643). You can access the opinion for free through the CA Supreme Court page, here. San Remo was a case that involved San Francisco's attempt to preserve affordable low-income housing by requiring owners of hotels that have residential units to obtain a permit before they eliminate those units. The conditions of the permit are that the hotel owner must either replace the old residential units with new ones or pay a fee that will be used to build new low-income residential units. The owners of San Remo hotel paid a fee (over $500,000) under protest and then sued, claiming that their property had been taken without just compensation (and thus that their rights under both the U.S. Constitution and the CA Constitution had been violated).

You might not think that this is a great way to help alleviate a shortage of affordable housing. You might think that it might be a good idea to try to convince the city to find some other method of doing so. (How about raising taxes to provide for low-income housing at the city's expense? Or maybe raising taxes to provide for an effective housing voucher program?) But to me the idea that this kind of regulatory scheme is unconstitutional and subject to being struck down by courts is dangerous because it will effectively hamstring cities and localities as they are trying to allocate burdens and benefits in their attempt to exercise their authority to provide for the "health, safety and welfare" of all their residents.

The CA Supreme Court decided that it should defer to the local authority here, but Justice Brown disagreed and wrote a scathing dissent that contained the following choice lines:

[I]t simply stretches the police power too far to suggest that the City is somehow regulating the use of property for the common advantage when it redistributes wealth by ordering a political minority to dedicate its property to the benefit of another group. The police power can no more be used in this way than it could be used to order a rich man to give a beggar a dime. (702)

See also this account of the oral arguments, where Justice Brown used the word "ransom" (a word that finds its way into her dissent as well, see 693).

This is a really interesting case. Justice Brown has also found her defenders for her position in San Remo (see, for example, Clint Bolick's essay here). I would bet the bottom dollar that the executive branch folks who vet nominations were elated to read her dissent. There is clearly a lot to think about with respect to these kinds of regulation in general. Still, courts should defer to legislative authorities in these kinds of situations. Justice Brown has shown that she would not defer to legislative authorities.

For those of you who still think that she would not have opportunity to write her policy preferences into law should she obtain a federal judgeship, note her approach to the Penn Central case (in which the Supreme Court rejected a challenge to a NYC historic preservation board decision by the owners of Grand Central station, who wanted to plant a multi-story office building on top of the station but were turned down by the board). See 702-3, where Brown argues that she " would not extend the holding of Penn Central beyond its unique factual context." Unremarkable for lawyers, perhaps, but for laypersons this argument means: even though she could save the legislative program with a reference to a valid Supreme Court precedent, were she so inclined, she would exercise her discretion not to do so.