Judging the Court

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This is the first of a to-be-yearly roundup of Supreme Court decisions by the most important libertarian lawyers in the country – which is to say, the most important lawyers in the country. Richard Epstein, Clint Bolick, Roger Pilon, and others have written case notes on the more important of last year’s decisions, as well as a closing section briefly describing the cases scheduled for this year’s term. The Review does an important job well, and is very timely, too. Epstein’s article on Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency is the first on that case, and is particularly interesting for another reason: writing for the majority, Justice Stevens had singled out Epstein’s brief (written with the Institute for Justice) and essentially wrote his opinion as a reply to Epstein. Thus the Review gives Epstein the last word.

Tahoe-Sierra involved a series of prohibitions on all construction in the L.ake Tahoe area. These Temporary moratoria” began in 1981, and remain in place. The plaintiffs argued that this 21-year ban took their property for public use, and thus they were entitled to just compensation. Nevertheless, by shifting the focus of his opinion to address only a part of the ban, Stevens was able to argue that it did not rise to the level of a taking under the Fifth Amendment, since, you know, the ban might be lifted … someday.

More important to Stevens, though, was the danger that the principle of compensation presents to the administrative state. Requiring government to pay for what it took from the Tahoe landowners would mean it should pay for other:

normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like, as well as to orders temporarily prohibit- ing access to crime scenes, businesses that violate health codes, fire- damaged buildings, or other areas that we cannot now foresee. Such a rule would undoubtedly require changes in numerous practices that have long been considered permissible exercises of the police power . . . [and] would render routine government processes prohibitively expensive or encourage hasty decision- making.

Thus is an argument refuted by the frightening nature of its conclusion.

This paragraph, though, shows that Tahoe-Sierra is really a thin cover for the gaping wound in American constitutionalism: the fact that the Court has looked the other way and allowed the legislative and executive branches to construct a massive governmental edifice totally alien to the Constitution on which it allegedly rests. In theory, there is a distinction between an exercise of the government’s police powers and an exercise of government’s authority to take property for public use. The former never requires just compensation (the police don’t have to pay a robber when they take away his gun) and the latter always does. But today, government exceeds its constitutional limitations so regularly that the line dividing the police power from the power to regulate, or to provide public goods, has been blurred. The distinction was gradually abandoned beginning in the 19th century, and came to crisis proportions during the Progressive Era, when the administrative state was born. The progressivist John Dewey denounced U the notion that there are two different ‘spheres’ of action and of rightful claims: that of political society and that of the individual, and that in the interest of the latter the former must be as contracted as possible.” As political scientist Robert Horwitz points out, this means that “the standard [for determining the nature and extent of the state] must be the empirical determination of which consequences of private activity are sufficiently serious or ‘irretrievable’ to warrant political intervention.” In practice this means government gains”complete responsibility for determining the limits of [its own] political power.”

The corrosion of the boundary between public and private life meant that government could simply regulate anything. What remained of the difference between public use and private use? Or between private property and public property? Such distinctions retreated down a theoretical hall of

mirrors until the New Deal, when the Court virtually abdicated its duty to prevent government from overreaching. When, in Wickard v. Fillburn, the Court held that Congress’ power to regulate 1/ commerce between the several states” meant it could prevent citizens from growing wheat in their own gardens for personal use, the idea of a Constitution creating a barrier between citizens and the state became almost a cruel joke.

Yet the Fifth Amendment remains, just as it was written in 1789. And fidelity to its takings clause is, as Epstein writes, “a large job, because it requires an assessment of the legitimate purposes for government action [Le., the limits of the police power], and some assessment of whether the means chosen are reasonably related to those purposes.” The Court has pushed away that responsibility so fervently as to convince itself that pushing it away is its responsibility. And still the Fifth Amendment remains.

Horwitz notes that progressivism cannot solve the problem of the tyranny of the majority, since it depends on “empirical determinations” of when regulation serves the public welfare. Thus the progressives placed “almost full dependence” on “an educated, public-spirited, and active citizenry.” Today1-s defenders of the regulatory welfare state thus criticize Epstein for his “conceptual” – that is, principled – approach to determining where the police power’s boundaries lie, and demand instead a “pragmatic” approach. But, writes Epstein, “such epithets as ‘pragmatic’ and ‘conceptual’ ring hollow without any explanation of how that ‘pragmatic’ system works.” The Court has developed so-called balancing tests to determine when regulation serves the public welfare, but these tests – which, coincidentally enough, tend to come down in favor of government far more often than not – barely disguise the fact that they facilitate a welfare state that is spinning out of control. Simply put, government cannot afford to pay for all that it takes from us, and Justice Stevens knows it. Finding a graceful way out of that quagmire is as messy as finding “peace with dignity” in Vietnam.

Another way the Rehnquist Court seeks escape is through Eleventh Amendment sovereign immunity. This concept, which even its defenders admit lacks the slightest shred of textual support in the Constitution, prevents Congress from allowing citizens to sue a state without the state’s permission. At first it applied only to suits in federal court. Then it was extended to state courts. Last term, in FMC v. South Carolina State Ports Authority, the Court extended it to administrative agencies as well. The Eleventh Amendment – which reads in its entirety, “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the U.nited States by citizens of another state, or by citizens or subjects of any foreign state” – now prevents the federal government from subjecting states to suits in administrative agencies. In theory, such immunity. limits congress’ authority to force states into compliance with federal regulatory schemes; Congress has

The Court has developed so-called balancing tests to determine when regulation serves the public welfare, but these tests – which, coincidentally enough, tend to come down in favor of the government – barely disguise the fact that they facilitate a welfare state that is spinning out of control.


written many checks on the state’s account, and allowed citizens to cash them in court. Robert Levy, whose article reviews FMC, writes that “the reach of federal power is reduced when states are immunized from litigation brought by private citizens suing under federal statutes.” But, he notes, protecting the state from suits by citizens is also a dangerous – and philosophically unwarrantable practice.

Sovereign immunity has no place in a government based on equality and consent; it belongs to a political theory that views justice as the will of the sovereign. Governments based, like ours, on compact, are limited in the same way individuals are: they have no authority to do to us what we cannot ourselves do to each other. This is precisely why government must pay when it takes our property; As Locke explained, “the legislative is not, nor can possibly be, absolutely arbitrary over the lives and fortunes of the people. For it being but the joint power of every member of the society given up to [the] legislator, it can be no more than those persons had in a state of nature. Nobody can transfer to another more power than he has in himself, and nobody has an absolute arbitrary power to take away the life or property of another.” Likewise, a government of the people can have no right to exempt itself from law. In a sense, then, Levy gets it backwards when he writes that ours is “a federal government of delegated, enumerated, and, therefore, limited powers.” Actually, it is because free government can only have limited powers that they are enumerated, and thereby delegated. And it is for the same reason that it should not be able to take our property – or do anything else to us – without answering to the law.

Sovereign immunity is another cover for the elephant in the room: the federal government has long since burst through the Constitution’s restraints. Yet the Court is unwilling to address that, as Levy notes. liThe growth of the administrative state was an I unforeseen phenomenon’ because it was patently unconstitutional.” But even though Justice Thomas admitted that the administrative agency “lacks any textual basis in the Constitution,” he ignored the implications of that fact.

The administrative state’s annihilation of the distinction between public and private leads to another. perverse result: liberals, once reliable defenders of free speech, are now turning their backs on that heritage. James Swanson puts it starkly in his article on Republican Party of Minnesota v. White: “The Court was one vote away from ruling that a candidate in a democratic election may not discuss disputed issues with the public. Even more troubling than the fact of the narrow majority is the content and tone of the dissent [which] simply ignores the Court’s vast literature on the vital importance of political speech in American life.” Justice Stevens even wrote that he would allow the state to prohibit judicial candidates from say- ing anything that” emphasizes the candidate’s personal predilections rather than his qualifications for judicial office.” In other words, even honest political opinions are too much of a bias. White is a dry run for the approaching case against “campaign finance reform,” which regulates political speech to an unprecedented

If no property is too private to be regulated, then no opinion is too private to be silenced.


degree, but the fact that liberals are willing to tolerate extreme controls on speech by candidates should really come as no surprise. In a society where everything is regulated, jobbery and political favoritism are inescapable, even when the regulator himself is basically honest. Defenders of the administrative state place” almost full dependence” on “an educated, public-spirited, and active citizenry,” but as government planning repeatedly fails (as it must) to achieve perfect efficiency, its designers become convinced that there must be something wrong with it – why, human error! – and so the regulators themselves must be regulated. The perfect bureaucracy requires the perfect bureaucrats: unimpeachable, perfectly objective, incapable of being bribed, incapable even of honest political views which might tip the scales. If no property is too private to be regulated, then no opinion is too private to be silenced.

The Review makes a handful of oversights, but they are more evocative than frustrating. Jonathan Turley’s article on  Watchtower v. Village of Stratton raises the interesting question of why the Court has so studiously avoided addressing the right to anonymous speech. Turley rightly points out that the Founders frequently wrote anonymously including The Federalist Papers, which were written under the pseudonym “Publius.” But Turley doesn’t mention that the Supreme Court itself often writes anonymously: tough cases, like Bush v. Gore, are often issued as “per curiam” opinions, to disguise the author, or present a unified front. Thus the Court itself finds value in a form of speech which it still resists acknowledging is protected by the First Amendment.

Another oversight comes in Clint Bolick’s article on the school-voucher case, Zelman v. Simmons-Harris. Bolick fails to address the one legitimate argument raised by Justice Souter’s dissent: that the Cleveland scholarship program leads to government interference with religion. As Souter noted, participating schools in Cleveland were prohibited from giving “admission preferences to children who are members of the patron faith,” and were even told what they. could teach children: “a separate condition,” wrote Souter, “that I the school not teach hatred of any person or group on the basis of . . . religion,’ could be understood (or subsequently broadened) to prohibit religions from teaching traditionally legitimate articles of faith as to the error, sinfulness, or ignorance of others, if they want government money for their schools. For perspective on this foot-in-the-door of religious regulation, it is well to remember that the money has barely begun to flow.” The irony of a liberal like Souter worrying about government overregulation should not lead us to overlook the fact that this is a real problem – certainly more substantial than the dissenters’ ludicrous conjuring of the specter of religious warfare. In the balance, Souter’s concern is outweighed by the benefits of school choice, but it is an argument worth addressing.

Some parts of the Review will be difficult for non-lawyers; others are written clearly enough for laymen to understand just how precarious their freedom is. For· the past several decades, that hasn’t mattered much to lawyers. In fact, Alexis de Tocqueville wrote that “although [lawyers] value liberty, they generally rate legality. as far more precious;· they are less afraid

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