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Takings That Aren’t The Constitution

April 26th, 2002 · No Comments

Takings That Aren’t

The Constitution is inconvenient. When bureaucrats want to seize private property, they’ve got to deal with the restrictions imposed by that pesky Fifth Amendment. As I noted a few weeks back, states can make themselves a good deal of elbow room by treating phrases like “public use” more or less the same way Clinton treated “sexual relations” and “is.” Still, as long as takings, however inappropriate, have to be compensated, the power of technocrats is constrained. And technocrats don’t like that. The solution? Takings that aren’t.

The Supreme Court made the front page of the New York Times last week when they declared that an open-ended development moratorium, which had blocked property owners in the Lake Tahoe region from using their land for six years, did not constitute a “taking” within the meaning of the Fifth Amendment. In so doing, they backed away from an earlier decision which correctly recognized that forcing someone to keep their land pristine and unused is effectively the same thing as seizing it. But in attempting to draw a bright line between full-blown takings and mere “regulation,” the Court bases its reasoning on a distinction without a difference.

It’s convenient to talk about a property right as a simple relation between a person and a thing: Bob owns a toaster. But this is little more than a useful metaphor; the simple grammar of such statements conceals a much more complex bundle of relations between persons, a whole series of rights to exclude or permit. We say, for example, that my landlord “owns” the apartment I live in. But he’s contractually bound to let me stay there as long as I keep sending in checks, and don’t blast my Soul Coughing at three in the morning, so it seems accurate to say that I, too, have a kind of property right in the apartment. My ownership of a plot of land may include the right to exclude others from trespassing by car or foot. But it doesn’t normally include the right to exclude the photons produced by my neighbor’s lightbulb, or airplanes flying thousands of feet overhead. Property, in short, is not one right, but a whole bundle of rights, which may be transferred en masse, or one at a time.

How many of the “sticks” in that bundle, then, must government seize before it has “taken” your property? Is it still “yours” if all you’re allowed to do with it is take moonlight walks once a week? Do you still own it as long as you’ve got that one lonely branch to play with? Trying to draw a sharp line here seems about as futile as trying to determine the precise number of grains of sand which constitute a “heap.” Ditch the imprecise language, and it’s clear what’s going on: some of your property rights have been taken, others have not. In this case, the practical effect of the development moratorium was the same as if the government had seized the land for six years, and then given it back. The owners suffered a palpable harm because of that interference, which no amount of semantic hair-splitting can erase.

Why, then, is the Court determined not to apply the requirements of the Fifth Amendment? Because, as Justice John Paul Stevens tells us, “Land-use regulations are ubiquitous and most of them impact property values in some tangential way — often in completely unanticipated ways. Treating them all as . . . takings would transform government regulation into a luxury few governments could afford.” Translation: “Governments do this all the time, so it must be OK. Making them pay owners would be as burdensome as… well, as free speech is to censors.” It’s nice of Justice Stevens to be so overt about his rationale, but his jurisprudence here clearly owes more to Machiavelli than Madison.

Now, I’m not a fancy big city lawyer; I’m just a simple unfrozen caveman. But it seems to me that the whole point of requiring compensation for takings was to make sure that the cost to owners would be weighed in the decision to regulate. When compensation is denied, technocrats are no longer constrained to make sure that their regulatory appropriation of certain “sticks” in the property bundle is efficient. Instead, we must rely on the Court to perform its favorite activity: “balancing” the interests of the state against those of some citizens. But as Ludwig von Mises famously observed, that determination cannot be made in the absence of price signals. If economic planning boards can’t get economic planning right, why should we expect federal judges to fare any better?

The Washington Post’s coverage of the decision, incidentally, could serve as a case study in subtle media bias. The first paragraph of their story says that the ruling “strengthens the hand of environmental regulators against the conservative-led ‘property rights’ movement.” Like the New York Times’s editorial, the Post’s staff writer labels opponents of unchecked regulation as “conservative-led.” But the parallel tags for environmentalists and regulators — “liberal” or “left-leaning” — are conspicuously absent. I guess they’re just part of the reasonable, moderate center. Note also the use of scare quotes around “property rights.” When was the last time you read an article about the “environmental” movement, or the “civil rights” movement? But don’t worry, despite the typographical sneering, I’m sure the Post’s reporting is always “objective” and “impartial.” “Really.”

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