Remora

After a night of disturbing dreams, LI awoke to find ourselves transformed into a crab... No. It isn't the dreams that have been disturbing, but the news. Merely the news. Every day, showered with evidences of universal imbecility, LI gets more crab-like -- with a crustacean's melancholy, or what we imagine to be the melancholy of an imperfectly armored creature. Yesterday, we were putting out a claw and an antenna, testing the air, and we stumbled upon, of all things, good news. Let's modify that as -- less than catastrophic news. News of the type: dam holds. Building does not collapse. Type news. Good news, in short, from, of all places, the Supreme Court. In a 6-3 ruling, the S.C. actually built a levee, at least a temporary one, against takings madness.



"The Supreme Court ruled today that a government-imposed moratorium on property development, even one that lasts for years, does not automatically amount to a "taking" of private property for which taxpayers must compensate the landowners.The 6-to-3 decision was a sharp setback for the property rights movement, which has scored many recent successes in the Supreme Court. The ruling came in a case that sought millions of dollars in compensation for a prolonged restriction on development along the shores of Lake Tahoe."

The takings movement, which is the child of the University of Chicago Law and Economics movement, has become the right's battering ram against environmental and, in general, corporate management. It is an attempt to hotwire a coup against the New Deal behind the backs of the electorate. The coup is rather funny -- these are the same people who want to reduce social costs, which is a real cost against third parties, i.e., property-holders, into a vaguely distributed "externality." But their ardor for property is really an ardor for large property holders... Far be it from us to evoke that dread and discredited phrase, class warfare, for this instance of class warfare. But one needs an analytic category to explain systematic discrepencies in the application of a theory, and class, pace the neo-liberal crowd, certainly seems to fit the bill.

Scalia, the right's Quasimodo on the court, suffered a setback with the ruling. NYT, again:

"For Justice Scalia, the decision today in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, No. 00-1167, must have been a particularly bitter defeat in two respects.

First, the majority rejected an expansive ruling of one of his most important opinions, a 10-year-old decision called Lucas v. South Carolina Coastal Council in which the court announced for the first time that a land-use regulation that, while leaving the property in the owner's hands, permanently deprived it of all economic use was a "categorical taking" that must be compensated.The Lucas decision breached what had been a doctrinal wall between a physical taking, in which the government actually takes possession of private property and for which compensation has always been required, and a "regulatory taking," in which the government restricts the owner's use of the property."

The second defeat is more technical. To paraphrase the NYT, Scalia had advocated a flat rule regarding the application of regulatory taking, which claimed that no pre-existing regulation should be considered when considering individual cases that might constitute such takings. Thus, the size of the taking would be calculated without regard to previous restrictions on the property -- an absurd attempt to inflate the cost of regulatory taking, the importance of which lies less in the individual cases to which it might apply than in scaring legislatures from considering measures that might, conceivably, be construed as regulatory takings -- measures such as protecting wetlands.

Private property is not, in itself, theft, contra Proudhon -- the phrase is in the nature of a sorites. However, given the wild eyed ideology of the Law and Economics movement, property functions as theft. The "takings" movement goes back to a case, Pennsylvania Coal Company vs. Mahon, from 1922. The Community Rights Org website has a nice summary of the case:

"Mahon sold the surface rights to land, but he reserved the right to remove the coal from under the land. The state then enacted a statute that prohibited coal mining if it threatened subsidence and damage to structures on the surface. The Court ruled that the restriction constituted a taking of Mahon's coal because the law made it commercially impractical for Mahon to mine the coal and thus had the same effect as destroying or appropriating the coal. In the first decision to hold that a land use restriction constituted a taking, the Court noted that "property may be regulated to a certain extent, [but] if regulation goes too far it will be recognized as a taking."

Holmes wrote the following in his opinion:

"The question of whether a regulation is a valid exercise of the police power or an unconstitutional taking depends on the particular facts. The property being protected here is private property belonging to a single citizen, in which there is no public nuisance if it is destroyed. The law is not justified as a protection of personal safety. The contract itself provided notice of the risks, and the grantee still contracted. Since coal rights are worthless if the coal can not be mined, preventing their mining is a taking because it is tantamount to destroying it. If the police power of the states is allowed to abridge the contract rights of parties, it will continue until private property disappears completely. In general, while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking.The loss should not fall on the coal company who provided for this very risk contractually. If the state wants more protection for its citizens,it can pay for it."

How Holmes logically juggled his argument that the slippery slope was inevitable, but that "property may be regulated to a certain extent," I leave to the psychologists. If, indeed, there are gradiants of regulation such that we can understand the phrase "a certain extent," then the force of the idea that abridging contract rights, i.e., regulation of property use, is such that "it will continue until private property disappears completely," is, to say the least, weakened.

Brandeis dissented in this case. Here's his dissent

"A restriction imposed to protect the public health, safety or morals from danger is not a taking. The restriction here is merely the prohibition of a noxious use. Just because a few private citizens are enriched does not make the law non-public. If the mining were to set free noxious gas, there would be noquestion that the state could prohibit it for the safety of the citizens, without paying the miner."

In LI's opinion, the Brandeis dissent is obvious. LI's opinion has been the opinion of the Federal Government, and of state governments, since the 1930s. The throwback position reminds us of why, originally, FDR tried to pack the court -- since the Court periodically feels called upon to play the avant garde for the reactionary cenacle among the ruling classs. Let's sum up: the robbery of the commons isn't justified by the enrichment of the property owner. And this isn't inessential robbery -- we are interested, as a society, in punishing individual robbery (instead of letting that duty devolve upon the victims as it may) because, theoretically, any robbery is an assault against a common good.

So, the court didn't do anything particularly lunatic yesterday. Good news. We are waggling our claws for joy. Dance dance dance.