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Wednesday, March 19, 2008

Takings, a Second Time

In 1985, I published my book, Takings: Private Property and the Power of Eminent Domain (1985), which promptly received a number of scathing reviews by authors who are best left unnamed for the moment. But I was confident then, as I am confident now, that the approach that I took to the topic was basically correct. The conventional wisdom on that subject went into overdrive to confine the scope of the takings cause so that it did not overrun the rest of the constitution, or create a strong set of imperatives that the political branches would have to observe. My own contrary view was that the clause was as comprehensive and bold as its prose, and that no more than any other broad guarantee in the constitution (think of the First Amendment on speech and religion), it did not deserve to suffer a death by a thousand cuts by judges anxious to preserve broad discretion in the national and local governments to regulate economic affairs or the use and disposition of private property.

Now 23 years later I have returned to the same topic in a new book from Oxford University Press, called Supreme Neglect: How to Revive the Constitutional Protection for Private Property.  The purpose of this new volume is to do several things. The first of these is to rearticulate the positions that I set out in the earlier volume in a form that is both accessible to a general audience and rigorous enough for an academic audience. The second purpose was to update the book to take into account some topics that only came to prominence after the original takings book was published. I decided to leave out discussions of some of the procedural obstacles to raising takings claim in federal court, but I did include discussions on the issues surrounding the problem of temporary partial takings as in the First English case, and of unconstitutional conditions problem as it was raised in cases like Nollan and Dollan.

There is a sneaky character of great constitutional provisions. The shorter they are, and the more common their language, the more difficult the task of their interpretation. Private property, for example, is not just a two-word phrase, but it represents an entire world view, which necessarily needs to be distilled from sources external to the text. Takings, public use and just compensation are also terms that come easily off the tongue, but are hard to explicate in any coherent fashion. In the next few blog posts I shall work through some of the key arguments on these issues. But for the moment, I will just note that I am quite proud that my own views leave me outside the mainstream of both the political left and right.

The left of course is deeply suspicious of all forms of private property and urges various populist recipes for government intervention that turn out to be worse than the disease. The right often is so anxious to avoid charges of judicial activism that it turns somersaults to avoid giving broad constitutional texts their broad intellectual content. Both sides start with prior positions that have no grounding in either constitutional text nor the theory of limited government (that "necessary evil") which underlies the document. In future posts, I hope to show that the path I have charted does justice to both the text and the structure of our original, but now forgotten, constitutional order. It was no accident that I titled the book "Supreme Neglect," for it is the Court's tepid application of the takings clause that is the source of most of our present intellectual, and institutional, difficulties.

Posted by RAEpstein on March 19, 2008 at 11:36 AM in Property | Permalink

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Richard writes:

"The right often is so anxious to avoid charges of judicial activism that it turns somersaults to avoid giving broad constitutional texts their broad intellectual content. Both sides start with prior positions that have no grounding in either constitutional text nor the theory of limited government (that 'necessary evil') which underlies the document."

"No grounding" in text or theory?! As much as I agree with Richard's substantive policy positions (being almost as enthusiastic about private property as I am about federalism), I think that this statement is an oversell.

Consider the following:

(1) Text: Those two words -- "private property" -- to which Richard refers are not the relevant text when one is dealing with state and local law. The Fifth Amendment's just compensation clause does not apply to the states, of course: Text, history, and theory -- i.e., federalism -- all unite to support Barron v Baltimore's holding. (Does Richard take issue with Barron?)

When dealing with non-federal government, the relevant text is section 1 of the Fourteenth Amendment. The Court has never given any extended consideration to the issue of why any clause of section 1 "incorporates" the "just compensation" clause but not, say, the Grand Jury clause. Without any explanation at all, the Court seems to have glibly conflated the "just compensation" clause and the due process clause in Chicago, Burlington & Quincy Railway Co. v. Chicago, 166 U.S. 226 (1897).

I suppose that the privileges and immunities clause might be taken to be a general reference to every single clause of the Bill of Rights. But such a position is, at least, controversial: Does Richard really believe that there is "no grounding" for the opposite view that the Fourteenth Amendment does not incorporate every single clause of the Fifth Amendment -- a view endorsed by (among others) Akhil Amar, John Harrison ("Reconstructing the Privileges and Immunities Clause," 101 Yale L J 1385 (1992), and Charles Fairman? Did they really "turn somersaults" to avoid the "total incorporation" view?

(2) Theory: One can believe that the theory of limited government requires some right but also believe that the courts ought not be the institution to enforce that right. Why does the theory of federalism and popular sovereignty not counsel caution in enforcing the "just compensation" clause against the states?

And please do not treat me to the reductio ad Brownum: Yes, of course, the Fourteenth Amendment must sometimes constrain state power. But it is one thing to say that the Fourteenth Amendment bars states from engaging in racist conduct, which was, after all, the core conduct that the Fourteenth Amendment was designed to constrain. It is another thing altogether to say that the Fourteenth Amendment should be enforced to stop states from engaging in regulations that every single state has enacted and that are only unconstitutional under a controversial theory of the Constitution. Does it really make sense to say that We the People have outlawed practices that, Richard admits, are widespread in every single state of the Union and have been since, say, the 1920s (when zoning became widespread)?

Even if one believes that the feds ought to be tightly constrained by Richard's theory, isn't there a reasonable position that states ought to be entitled to experiment on the proper scope of complex rights like private property?

Posted by: Rick Hills | Mar 19, 2008 12:11:05 PM

"The left of course is deeply suspicious of all forms of private property..."

That's surely too strongly put. Obviously in a blog post you can't make the most careful argument, but this is so clearly an over-statement, at least with the "all" part. Rawls, for example, calls his favored position a "property-owing democracy", one where the ownership of capital is highly distributed, and argues that at the very least ownership of personal private property is a necessary condition for justice. Very few people on "the left" seriously advocate anything other than some form or other of capitalism. Now, obviously these don't go up to the level of a natural right to full Lockean property rights that you might like but it's clear that the claim as put is a pretty gross over-statement.

Posted by: Matt | Mar 19, 2008 12:54:13 PM

"[T]he Court's tepid application of the takings clause ... is the source of most of our present intellectual ... difficulties."

Reconciling quantum mechanics and relativity? Explaining consciousness? Maybe most of the others, though.

"...reductio ad Brownum..." Heh.

Posted by: Chris | Mar 19, 2008 1:06:02 PM

Rick Hills cites the 1897 Chicago case as incorporating the Takings Clause against the state. That is indeed the classic citation.

In an earlier ratemaking case, however, the Court looked to the Equal Protection Clause for that purpose. Reagan v. Farmers’ Loan & Trust Co., 154 U.S. 362, 399 (1894): These cases all support the proposition that, while it is not the province of the courts to enter upon the merely administrative duty of framing a tariff of rates for carriage, it is within the scope of judicial power, and a part of judicial duty, to restrain anything which, in the form of a regulation of rates, operates to deny to the owners of property invested in the business of transportation that equal protection which is the constitutional right of all owners of other property. There is nothing new or strange in this. It has always been a part of the judicial function to determine whether the act of one party (whether that party be a single individual, an organized body, or the public as a whole) operates to divest the other party of any rights of person or property. In every constitution is the guaranty against the taking of private property for public purposes without just compensation. The equal protection of the laws, which, by the fourteenth amendment, no state can deny to the individual, forbids legislation, in whatever form it may be enacted, by which the property of one individual is, without compensation, wrested from him for the benefit of another, or of the public.

Posted by: Stuart Buck | Mar 19, 2008 1:37:17 PM

Matt,

While I agree with your reply to Epstein, I would like to quibble with the following: 'Very few people on "the left" seriously advocate anything other than some form or other of capitalism.' Well, less so than another time, but I write surrounded by more than a few titles by contemporary Leftists that imagine and advocate for a future beyond capitalism, even if they concede that future is not near-at-hand nor to be realized by "revolutionary violence" nor by simply assuming control of the helm of the State. Of course personal private property is perfectly compatible with socialism and even Rawls acknowledged the importance of what he termed "liberal socialism" (citing John Roemer's 1994 book with that title) in the discussion of Marx in his posthumously published Lectures on the History of Political Philosophy (Samuel Freeman, ed., 2007: 323). I count myself among these avowed socialists, although the Marxism that inspires this socialism is often more modest in its politics, more analytical in its theory (a la Roemer, Elster, etc.), and more unashamedly but explicitly utopian (invoking moral principles and ethical criteria on the one hand, and less historicist on the other) in its critique of capitalism ('utopia' here in the sense exquisitely outlined by William Galston in Justice and the Human Good, 1980).

Posted by: Patrick S. O'Donnell | Mar 19, 2008 7:16:49 PM

I have some sympathy for the positions you mention, Patrick. I probably favor the "property owning democracy" idea over liberal socialism for reasons gleaned from reading Alec Nove's wonderful book _The Economics of Feasible Socialism_, though. (I'm not 100% sure what Rawls's idea comes to so don't completely know that I favor it.) The stronger point I wanted to make was that on what's considered "the left" today (and certain what's "the left" by Epstein's standards) those who do not favor some form of capitalism (which is of course not to say laissez faire capitalism at all) are much greater in number than those who favor socialism of any sort. Whether that's good or bad is independent of this, but I think that's clearly so. secondly, even of those who favor socialism it's almost always a "market socialism" of some sort that leaves a bit place for personal property, so even these people are not "suspisious of all forms" of private property. Given this, I don't know if we are that far apart.

Posted by: Matt | Mar 19, 2008 7:36:16 PM

Rick Hills writes: "The Court has never given any extended consideration to the issue of why any clause of section 1 'incorporates' the 'just compensation' clause but not, say, the Grand Jury clause. Without any explanation at all, the Court seems to have glibly conflated the "just compensation" clause and the due process clause in Chicago, Burlington & Quincy Railway Co. v. Chicago, 166 U.S. 226 (1897)."

This opinion was written before the incorporation doctrine, as such, existed, and is not based on the incorporation of the 5th Amendment's Takings Clause. Rather, the Court held that taking someone's property without just compensation is an arbitrary infringement of the right to property protected by the 14th Amendment's ban on depriving some of property without "due process of law." Arbitrary deprivations of property rights do not constitute "due process of law."

Unfortunately, the Kelo Court reiterated the myth that Chicago etc. interpreted the Takings Clause. The case is a due process case involving an unenumerated right, only anachronistically deemed a "Takings" case, as in the Takings Clause.

Posted by: David Bernstein | Mar 19, 2008 8:02:34 PM

It is never quite clear what arguments will move people, but clearly my observation about the left and private property generated some spirited responses, chiefly from Rick Hills. Here are a couple of observations in reply.

The first point is that it does his cause little good to stress the point that the takings clause was originally directed only to the states. So it was, but the privileges or immunities clause of the fourteenth amendment deal with the protection of the right to possess and acquire property and thus is an adequate foundation for a system of property rights (at least for citizens), for it hardly seems probable that the right to possess property can be negated by rules that deny individuals the right to use or dispose of it, at least in accordance with standard common law rules. Stuart Buck also notes that the equal protection clause can easily be read to deal with the unequal protection of various assets, and the contracts clause, which is in the original constitution should have a prospective effect (as Marshall and Story argued in Ogden v. Saunders). It therefore seems odd to say that once the fourteenth amendment is in place with its powerful restrictions on state behavior, we have moved toward a theory of popular democracy at the state level. The opposite seems more true. On all matters, there is less willingness to tolerate state behavior after the fourteenth amendment than before.

Nor does it make much sense to indicate that the fourteenth amendment was directed toward. It surely was in the citizenship clause, but the privileges or immunities language of section one delineates broad rights shared by all citizens, including the newly minted former slaves. And lest one think that zoning is unrelated to matters of race, the pattern of racial exclusion was in the background with cases like Euclid vl Ambler, and has remained one of many themes in zoning since then. But even where it is absent, it hardly follows that massive deprivations of property through regulation should be ignored.

Last on the general question of Rawls and his approach to property, I have mixed emotions. The veil of ignorance theory is quite consistent with private property if one accepts the Lockean assumption that all individuals own their own persons. But Rawls did not accept that, so that the fruits of labor could easily belong to the collective as well, which is why he is quite comfortable with various forms of redistribution that narrow the gap from top to bottom. On this point, one does not have to think of property as some unmovable absolute to realize that it places more restraint on government behavior than any theory which looks upon it with suspicion. The blunt truth on this point is that modern constitutional law gets itself into a twitter because it works overtime to negate the clear strong property/limited government view of political theory in favor of a far more ambitious rule of state domination.

Back to Supreme Neglect shortly.

Posted by: Richard Epstein | Mar 19, 2008 10:46:08 PM

hmmm, lots of bad typos in my last comment. First, I meant to say (as common sense should make clear) that the number on "the left" who _do_ favor some sort of capitalism is greater than the number that favor socialism. I think that's obviously so whether we think it good or bad. Secondly, I meant to say that even those who favor some sort of socialism almost all favor some sort of "market socialism" that leaves a _big_, not a _bit_ place (whatever that would be) for personal property.

As for the Lockean idea, I tend to think the idea of self-ownership is not too helpful and is one that no one has been able to make clear. Certainly no one has been able to make sense of any labor-mixing theory of gaining property. Given that, I think it's just a non-starter. It's still not clear to me how most of the left can reasonably be thought to look on private property "with suspicion" since nearly all views hold that private property in some form is essential for justice. (This is made explicit in Rawls's later works, for example.) It seems a pretty clear false move to go from the rejection of some dubious Lockean absolute property right to the claim that private property is looked at "with suspicion". Obviously, as I'd said before, in a blog post it's unreasonable to expect a full view, but the one presented seems like a pretty contentious one to me.

Posted by: Matt | Mar 19, 2008 11:58:40 PM

I too don't want to make too much of Professor Epstein's failure to present "rightness" and "leftness" with due nuance in a *blog post*, but I too must lodge a complaint. I agree with the spirit of Matt's comments--there's much more to "leftness" with respect to property than *state socialism*. Even among *libertarians* who believe in a "Lockean" view of self-ownership, some (like Professor Epstein) lean "right" and view all resources as permissibly owned privately, whereas others (Henry George, Hillel Steiner) lean "left" and take the view that unlike other resources *natural resources* may not be owned privately. One might disagree with left-libertarianism (I happen to find it compelling), but at any rate it's not only a view on the "left" that isn't "suspicious of all forms of private property", it's one that has much in common with Epstein's own views--strong beliefs in Mill's harm principle and freedom of contract.

Posted by: Brutum Fulmen | Mar 20, 2008 1:16:29 AM

Matt,

We *are* largely in accord, although I think your "left" thereby largely consists of Liberals (hence the larger nubmer who favor capitalism) while I was thinking of a Left that distinguishes itself from Liberalism proper, however much it may overlap with much of value (the notion of autonomy, rights, constitutionalism, etc.) in the Liberal tradition. Such quibbling aside, I do want to mention a version of the self-ownership thesis that *is* intriguing...and egalitarian, namely, that argued by John Christman in The Myth of Property: Toward an Egalitarian Theory of Ownership (1994). Christman elaborates the meaning of an Hegelian ('self controlling' model) as opposed to the better-known Lockean conception of self-ownership. Although I'm not prepared to assess its merits, or lack thereof, I do think it deserves our attention as a model worthy of serious consideration (if only because of his fondness for the oft-misunderstood--when not neglected--Proudhon!). (Personally, I'm inclined to a Gandhian-like 'trusteeship' model of property, but as of now it's only an intuition or a figment of my imagination.)

Thanks to Brutum Fulmen for the point about Left-Libertarians, as it is some of those folks who have argued the case for a Basic-Income Grant/Guarantee.

And apologies to Professor Epstein for taking this thread a tad off topic. On topic: Although I'm no expert here and thus on the outside looking in, I don't think it is at all true or at any rate, transparent, that "modern constitutional law gets itself into a twitter because it works overtime to negate the clear strong property/limited government view of political theory in favor of a far more ambitious rule of state domination." Sounds too much like conspiracy-mongering to me, among other problems.

Posted by: Patrick S. O'Donnell | Mar 20, 2008 1:59:35 AM

As David Bernstein notes, there has never really been a good account explaining why takings doctrine should be federalized via "incorporation." For an excellent account of how the Court has avoided discussing the federalism issue regarding takings, I strongly recommend Bradley C. Karkkainen, The Police Power Revisited: Phantom Incorporation and the Roots of the Takings Muddle, 90 Minn. L. Rev. 826, 838-51 (2006).

So, Richard, I think that your book could make an excellent contribution if you explained why you think that protection for property ought to be federalized, either as a matter of original understanding, normative theory, economic policy, political economy, etc. Bill Fischel, of course, has made the level of government a critical issue in the law and economics of takings. Likewise, Chris Serkin at Brooklyn has explained why local governments might actually be trusted to set compensation policy in a sensible way. "Big Differences for Small Governments: Local Governments and the Takings Clause," 82 N.Y.U. L. Rev. 1642 (2006).

In short, it just is not sufficient anymore to argue that a particular set of compensation rules are a good idea: One needs to explain which institution ought to be in charge of formulating and enforcing those rules. And one really needs to do more than point to the P&I clause of the 14th Amendment and declare that the common law of property is part of the P&I of citizenship. That argument will not persuade anyone who is not already a true believer: People like me -- people who are very sympathetic to property rights protection -- won't buy the claim that the P&I clause is not ambiguous enough to support a wide variety of views concerning the nationalization of property law.

As an analogy: I love home rule for municipalities. I want their autonomy to be protected because I believe that such autonomy is essential for true popular sovereignty. But I also believe that Hunter v City of Pittsburgh correctly relegated the issue of local autonomy to the states' constitutions, refusing to federalize a complex issue that is not amenable to a one-size-fits-all answer.

So what about it, Richard: Are you going to explain why the feds ought to govern this area to the exclusion of other levels? Federalism nuts who also love private property are ready for you to make the case.

Posted by: Rick Hills | Mar 21, 2008 2:17:22 PM

Let me make a couple of comments about the recent postings, which move off in very different directions.

The first of these concerns the question of whether we should count ourselves in the "left" or "right" versions of Lockean theory. The difference between them is that the left side of the debate takes seriously the claim that God gave the earth and all the animals on it to mankind in common, so that the true difficulty is to figure out how to create a system of separate property by the unilateral actions of ordinary individuals. There are two answers to this question The first is to deny the theistic foundations of property law and to insist that the more accurate account is that of the Roman and early English systems, which is that land and animals were items that were owned by none (the res nullius of Roman law) that all could be taken and owned by the first possessor. At this point, there is no question of taking anything out of the common. There is only the question of deciding who is the first possessor, which gives rise to the usual disputes over such matters as whether hot pursuit is sufficient to count.

That position of course creates a second difficulty, which is to explain why any property is in fact ever left in common. The Roman rules on this point were clear, that water and (hence) the beach could not be privatized, even though stranded individuals could erect (temporary) huts on the beach to shield themselves from the perils of the weather. The point, however, is that any privatization of these rivers and beaches will kill off effective transportation and communication, so that the earlier division of rights, which is more subtle than either the pro or anti-commons strand of Lockean thought is likely to maximize the value of both kinds of resources. Knowing this division, I think, exposes the real weakness of positions like Steiner's which try to marry a system of individual autonomy with the permanent socialization of tangible objects, which has the horrific downside of preventing the productive use of virtually any tangible asset. To be sure, there are problems of overconsumption from the common pool, but these are better handled not by keeping everything in the commons but by developing when the risk is great bag limits and other devices to preserve sustainable private yields. I have written about this mix between public and private property (and offered a response to Christman's 1994 article in On the Optimal Mix of Common and Private Property, 11 Soc. Phil. & Pol. (No. 2) 17 (1994).

As to Rick Hill's challenge, I think that it is hard to answer someone who claims a form of invincible ignorance. He asserts that the Privileges or Immunities Clause does not do the job, but he does not explain why that should be the case. In my view the genius of the original Fourteenth Amendment was that it did not adopt a strategy of special solicitude for the newly freed slaves, which is why after the citizenship clause, privileges or immunities, equal protection and due process make no reference to the special position of slaves, or to any matter of race (in contrast to the 15th Amendment which surely did). The point is that once the parity on citizenship has been achieved, the equal rights regime (with its distinctive libertarian cast) would do much to solve the problem. And had we kept to that vision in the dark days of Jim Crow we could have avoided much racial conflict and national pain.

And his last question is just misguided. The imposition of federal limtations on the state regulation of property does not allow the feds "to govern this area to the exclusion of other levels." The point here is that the states govern and have the power of initiation. The prohibition on takings is a limitation with which the states have to live, along with the other protections that are part of privileges or immunities. Nor is the question of federalism nuts rightly place unless there is a discussion of the commerce clause, which if read in its pre 1937 style, as I would have it, does guarantee lots of exclusive governance space, subject only to constitutional checks. But once the federal government is allowed to regulate, then Rick and I part company yet again. I so fear dual inconsistent regimes that I think that we have to be dubious about the supposed "presumption against preemption," which is a position that I have argued for with Michael Greve, in Introduction: Preemption in Context, in Federal Preemption: States’ Powers, National Interests 1 and Conclusion: Preemption Doctrine and Its Limits, in Federal Preemption: States’ Powers, National Interests 309 (Epstein & Greve eds. 2007) (with Michael Greve). No federalism nut could support a position in which there are no areas that are subject to exclusive state (and local) governance.


Federal Preemption: States’ Powers, National Interests (with Michael Greve) (AEI 2007).

Posted by: Richard Epstein | Mar 21, 2008 3:26:28 PM

Needless to say, our options are not limited (as Richard suggests they are) to theism on the one hand and right-libertarianism on the other. One can accept the view that natural resources belong (in some sense) to all of us while rejecting God as a reason for why that should be so. Also, our options are not limited (as Richard suggests they are) to "permanent socialization of tangible objects" on the one hand and right-libertarianism on the other. Left-libertarianism is not the view that initially an individual has no right to use or appropriate natural resources without the permission of all her fellow Earthlings. Of course an individual can take unilateral actions with respect to natural resources. But her rights with respect to that resource might more resemble "usufruct" than "fee simple"; and she might have some obligations of limiting her share, compensating others, allowing others access, etc.

Posted by: Brutum Fulmen | Mar 21, 2008 7:00:44 PM

A quick response to BF. If he rejects theism then he must come up with some reason to decide which resources can be held in private and which can be held in common. Surely consumables have to be taken from the commons for private consumption or we shall all starve. My position is that resources are held in common when needed to avoid blockades, but not in those situations where the private ownership of discrete resources allows for the independent use of separate resources. Blockades are a real problem for rivers. But the want of cultivation is a real problem for farmland. The term usufruct has a real ambiguity. In some instances it is used to describe the limited access rights to a common, like a river. In other cases it is used to describe an inalienable life estate, which is its dominant meaning from the Roman law.

Posted by: Richard Epstein | Mar 21, 2008 11:35:51 PM

Richard writes:

"The genius of the original Fourteenth Amendment was that it did not adopt a strategy of special solicitude for the newly freed slaves, which is why after the citizenship clause, privileges or immunities, equal protection and due process make no reference to the special position of slaves, or to any matter of race (in contrast to the 15th Amendment which surely did)."

It seems that Richard and I are playing "presumption tennis." I say that the ball is in his court to provide some sort of historico-normative-textual argument for why any clause of the 14th Amendment ought to be construed to impose on the states the libertarian regime that he espouses. He says that the ball is in my court to explain why the utterly vague phrases of section 1 do NOT impose such a regime. So the question is: who's serving in this tennis match?

I say that the burden is on Richard to explain why section 1 should be construed to enforce a fairly radical libertarian theory against the states. Mind you, I like the theory. (Remember, Richard, that I, like you am a libertarian). But I really think that Richard bears the burden of bucking conventional interpretative wisdom. In other words, it is Richard's serve.

But, since Richard seems to want me to get this tennis match started -- here are four questions for Richard. If he can answer any of them affirmatively and support that answer with a single germane citation, I'll feel obliged to come up with a rebuttal.

(1) Original understanding in the 39th Congress: Can Richard show me one single member of the 39th Congress -- I ask for only one -- who stated that the vague phrase "privileges & immunities" should be construed to incorporate Richard's libertarian theory of property rights? Keep in mind that they were legislating against a background of state laws that frequently contradicted this theory. (See, e.g., William Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (1997), which comprehensively details the multitude of local and state laws that interfered with property and contract in ways inconsistent with Epsteinian theory). Did any suggest that such state and local laws -- a vast myriad of laws, mind you, that had existed for centuries -- would be overturned by the 14th Amendment?

(2) Precedents interpreting the state constitutions: Okay: Richard is not an originalist. But what about the antebellum precedents interpreting the state takings clauses? Has not John Hart and Bill Treanor adequately shown that no one in 1791 adopted his view of the takings clause? (See Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Columbia Law Review 782 (1995) & Hart, Land Use Law in the Early Republic and the Original meaning of the Takings Clause, 94 Nw. U. L. Rev. 1099 (2000)).

If not, can Richard identify a single antebellum state court that expressly adopted his view of the takings clause?

(3) General 19th century historiography: There is a voluminous historiography out there on the intellectual underpinnings of the Fourteenth Amendment: Howard Gillman, Bill Nelson, Michael Les Benedict, Eric Foner, Garrett Epps, Robert J. Kaczorowski, have all written about the ideologies of "free soil" and "free labor" and the struggle against the "slave power" that informed the Fourteenth Amendment. But I have yet to find one academic historian who would endorse Richard's view that the general political theories informing the Fourteenth Amendment would suggest the sort of libertarian views that he endorses -- that is, compensation for regulatory restrictions on property.

Can he identify such a historian? Again, just a single one would do.

(4) Antebellum political & legal writers: Okay, those academic historians might all be a bunch of property-hating liberals. So let's look at the primary sources. It seems to me that Republicans of the 1850s believed that "free soil" and "free labor" were perfectly compatible with a Republican agenda of intense statism -- meaning prohibition of booze (the Maine law of 1847 was widely backed by Republicans, suggesting that Mugler v. Kansas was consistent with their general ideology ), high tariffs, and high public spending for infrastructure.

But I'm no historian: I could be wrong. So can Richard identify a single antebellum politician, academic, judge, activist, pamphleteer, or publicist of any type who (a) was a member of the Republican/Whig/Free Soil/Anti-Kansas & Nebraska Democratic Parties/etc. could plausibly be said to have contributed to the general mindset informing the 14th Amendment Amendment and (b) who endorsed Richard's libertarian theory of compensation?

Again, I just want a single person: William Lloyd Garrison, Charles Sumner, Lincoln, Salmon Chase, Wendell Phillips, Lyman Trumbull, Frederick Douglass, etc. I'll even accept my favorite Democrat, William Leggett: Did even the arch-libertarian, anti-slavery Jacksonian William Leggett take the view that government would have to pay compensation for the excessive regulation of property?

If the answer to any is "yes," followed by a citation, then the ball's in my court. If the answer to these four questions is "no," then I guess that I just served up four aces: My game, right?

Posted by: Rick Hills | Mar 22, 2008 11:35:20 AM

This will be—promise—my last specific reply to Rick Hills on this round, as I will shortly post a second blog on the constitutional interpretation of the takings clause that ignores the federalism question and addresses the substantive issue. But on his particular challenges, I have these responses.

I put little or no weight on the burden of proof, and think much more depends on the full development of the argument. But as to history, there is a long tradition that reads privileges and immunities in the second of which I speak which is grounded in the early English charters, Article IV of the Articles of Confederation, and of course, Corfield v. Coryell. It is no answer to call these sources vague, because even though they leave open some hard questions, the one word that does NOT describe them is narrow. Everyone thought that the Fourteenth Amendment was transformative, and a narrow interpretation does not respect that historical sense. There was a debate between those who thought that it was a charter of rights and those who thought it was a means to protect the nondiscrimination standards worked into the 1866 Act,a but there is NO ONE at the time who thought that the Slaughter-House decisions got it right by applying it only to the rights that people had in their capacity as federal citizens. So on any reading it is far broader than Rick suggests. And normatively, the framework works well to stop factional abuse while allowing regulation to deal with externalities such as aggression and pollution and the coordination problems that arise in managing monopolies and common pools. Rick is singularly mysterious in his own normative foundations, and nowhere explains how is devotion to majority rule is consistent with a libertarian position, or would succeed in dealing with the protection of other rights against state action, including those that relate to speech and religion to which, I assume, he thinks that the First Amendment, being directed to Congress, does not apply.

One last point, Rick makes references to Bill Novak's exhaustive study of regulation in the ante bellum period which shows a broad range of state statutes that are sustained against all sorts of challenges. but here Novak's book falls short for one important reason. The libertarian (or classical liberal theory) allow for a strong use of the police power dealing with such things as fireworks and nuisances. What Novak has to show to discredit my views is regulations that cut commonly into areas that I would regard as protected choices. Once I asked him if he knew, apart from common carriers, any general antidiscrimination law that was sustained under the police power in this period. He knew of none. Nor do I. The regulation in ante bellum period covered diverse heads, but it was not unlimited. The only real reversal is of course with the regulation of sexual conduct, especially outside of marriage. There the morals head of the police power gave the state (too much) power. I assume that Rick thinks that decisions like Griswold and Lawrence are wrong, given their intrusion of state autonomy,

Posted by: Richard Epstein | Mar 22, 2008 2:59:48 PM

Even though his comment was posted mid-thought, Richard stuck to his promise to make it his last post on this thread, proving once again that he's a man of principle.

Posted by: Anon | Mar 23, 2008 8:39:12 PM

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