PROPERTY RIGHTS POST-KELO

     Today, the Environmental Law Society, ACS, and Federalist Society welcomed John Echeverria of the Georgetown Environmental Law & Policy Institute, and Timothy Sandefur, of the Pacific Legal Foundation, to discuss the implications of the Supreme Court's 2005 decision in Kelo v. New London. The event began with Professor Tom Merrill offering a broad legal, political, and historical explication of the tension between property rights and government management of land use.
     Mr. Echeverria spoke first, beginning with a flat-out condemnation of the "regulatory takings agenda." He characterized this agenda as an effort to sabotage the workings of government in responsible management of land. The Takings Clause, Mr. Echeverria argues, should be applied narrowly to actual takings and invasions of property, citing an opinion written by Justice Scalia asserting such an interpretation. Mr. Echeverria traced the development of the "regulatory takings agenda" to the academic work of Richard Epstein, however declared it a "flop" given consistent Supreme Court holdings restricting the doctrine of regulatory takings to those situations in which regulation effectively constitutes an actual taking of the property. Turning to considerations of public policy, about half of the states have some sort of regulatory takings legislation. Aside from a referendum in Oregon (Measure 37), which Mr. Echeverria chalks up to electoral manipulation, the state policies are largely symbolic. Analyzing the slate of over 20 referendums at issue in the 2004 election, Mr. Echeverria optimistically points out that those propositions focused narrowly on eminent domain were successful, while those confounding that issue with regulatory takings failed. Concluding with an observation on the experience in Oregon, Mr. Echeverria notes that the regulatory takings argument for land-owner compensation fails because the regulation applies to all in the community, and therefore protects a complaining land-owner while inhibiting them. Therefore, those who seek compensation under the theory of regulatory takings really seek an individual exception to a mutually beneficial land-use regulation.
     Mr. Sandefur began his comments with a rejection of Mr. Echeverria's presentation and a plug for his recent book. Beginning at the beginning, Mr. Sandefur parsed the language of the 5th Amendment and sought to demonstrate the blurry line between physical takings and an outright and absolute restriction of the uses of a given property. Mr. Sandefur equated the post-Kelo world with Hobbes' nasty and brutish state of nature. The theories of John Locke informed the founders' thinking, and as such, the government is limited by theories of natural rights: the government cannot wrongfully abridge one's natural property right. Mr. Sandefur argued that "liberty trumps democracy," and that the Constitution created a government that should serve as a "bank guard" and restricted that guard from robbing the bank himself.
Attacking the tenets of progressive political thought, Mr. Sandefur generally criticized progressives' willingness to submit to majority views on the meaning rights. Mr. Sandefur went on to criticize the "rational basis" standard of review as a crippling and irrational judicial standard as the product of the progressive view. Coming around to the effects of Kelo, Mr. Sandefur points out that eminent domain reform has no natural constituency, while regulatory takings reform does have strong and financially-capable support. Mr. Sandefur characterized the argument against regulatory takings as "we can't afford it, so we should get it for free." He noted that forcing the government to pay for regulatory takings would compel more rational policy-making by forcing the government to bear the costs of their choices. Mr. Sandefur ended with his opening question: "what is a legitimate government interest." In crescendo, he asks: "If we don't know what a legitimate government interest is, what business do we have determining what a rational basis for one is?"
     Compelling argument throughout the hour, the issue of regulatory takings taps into deep philosophical questions about the purpose and powers of the federal government. The ACS, ELS, and FedSoc would like to thank both Mr. Echeverria and Mr. Sandefur for their dynamic, adversarial, entertaining, and genuinely thought-provoking comments.