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Friday, June 18, 2010

How federalism inevitably trumps takings doctrine -- and a good thing, too.

SCOTUS' decision yesterday in Stop the Beach Renourishment v. Florida Dep't of Environmental Protection once more illustrates the axiom already established by many other decisions: Absent the sort of majoritarian passion that the Fourteenth Amendment was designed to prevent, SCOTUS cannot, should not,and will not centralize the definition of "property" through a vigorous federal takings doctrine.

At the center of the case was the question of whether the Florida Supreme Court "took" landowners' property by holding that the state's right to control sand deposited on submerged land by the government to re-build an eroded beach trumped the landowners' common-law right to littoral property landward of the mean high tide line. Parts I and IV of Justice Scalia's opinion illustrate the folly of trying to resolve these hyper-techical issues with federal constitutional law. In these sections, Scalia offered a learned exposition of Florida's property law on avulsion, accretion, and relictions, concluding that the Florida Supreme Court got its own law right in holding that (a) land added suddenly to the shore -- "avulsions" -- belongs to the state, while land added gradually -- "accretions" -- belongs to the private landowner and (b) sand dumped on submerged land constitutes an avulsion, even if this new state-owned sand interferes with the abutting private landowners' access to the water. The entire discussion implicitly presupposed that SCOTUS ought to lecture state judges about the meaning of their own state common law of property. But only the wackiest proponent of dirigiste policy-making would recommend that a bunch of former federal appellate judges, mostly innocent of any real knowledge of real estate, should essay to teach state judicial policymakers about subjects like (for instance) the touch-and-concern rule in covenants, easements by necessity, adverse possession, and the like. These are literally mundane issues with which state judges have greater experience. Moreover, as common-law decision-making, these are necessarily non-interpretative questions of policy-making for which politically responsive state judges are far better referees than Article III mandarins.

I can already hear the protests of my centralizing friends who love "rights absolutism," declaring that these are matters of federal right that must be defined by federal judges. In my view, this sort of rights absolutism confuses constitutional supremacy and Article III supremacy: Just because a right is a federal right does not mean that it must be defined by federal courts. Indeed, Stewart Sterk has nicely shown that takings rights in particular are permeated with federalism concerns: In cases like Kelo, San Remo Hotel, and Tahoe-Sierra, the feds essentially deputize the state courts to define the scope of federally protected "property." I doubt that Justice Scalia's erudite disquisition on avulsion and accretion will change the necessity of such decentralization: A majority of SCOTUS will (quite sensibly) not want to be dragged into the minutiae of state property law -- or, for that matter, state regulatory policy on guns, state family law on parental powers, and a host of other concerns that are ostensibly the subject of centralized federal rights. This overriding concern of comparative institutional competence, I predict, will lead the Roberts Court will behave exactly as did the Rehnquist Court with takings cases (and, I hope, gun cases, parental rights cases, affirmative action cases, among others): They will defer heavily to state judges about the meaning of "property," absent some indication that confiscatory minded voters were targeting isolated landowners in a spate of majoritarian greed.

Posted by Rick Hills on June 18, 2010 at 03:40 PM in Constitutional thoughts | Permalink

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Prof. Hills writes: "I doubt that Justice Scalia's erudite disquisition on avulsion and accretion will change the necessity of such decentralization: A majority of SCOTUS will (quite sensibly) not want to be dragged into the minutiae of state property law -- or, for that matter, state regulatory policy on guns, state family law on parental powers, and a host of other concerns that are ostensibly the subject of centralized federal rights."

Interesting, and sounds about right, but why do you suppose the Court took the case in the first place?

Posted by: Associate | Jun 20, 2010 5:31:32 PM

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