WHINE
COOLER
REASON August/September 1998
By James V. DeLong
Property
and Freedom: The Constitution, the Courts, and Land-Use
Regulation,
by Bernard H. Siegan, New Brunswick, N.J.: Transaction
Publishers, 290 pages, $34.95/$21.95 paper
You
cannot pick up a newspaper these days without drowning
in tearful stories about the condition of America's
metropolitan areas. My local paper, The Washington
Post, is quite fond of this urban whine. It is an
unusual day when the Post does not carry several
examples, centered on a few predictable themes.
There
is the "sprawl" theme: An evil group of developers
is building houses somewhere in the suburbs, often on
big lots, thus exacerbating automobile culture and preventing
the high population densities necessary for efficient
mass transit and the development of liveable urban cores.
A variation on this theme is "dense sprawl":
An evil group of developers is building houses on small
lots in the suburbs, thus overstressing the infrastructure
and changing the peaceful rural character of one of
the area's last refuges against galloping urbanism.
There
is the "neighborhood" theme: The evil developers
want to build townhouses or apartment houses in some
city neighborhood--perhaps Cleveland Park, where a lot
of editors seem to live--thus increasing the density,
overcrowding the streets, and ruining the area's charm,
which depends on low densities and big lots (all within
walking distance of a Metro station, of course).
These
themes are often combined with concern about the "auto
culture": People are spending all their time in
cars, driving from jobs to schools to soccer fields
to stores. The villain in this scenario is a little
harder to find. It seems to be "us." We ought
to live in areas where all these things are within walking
distance, and by God the authorities ought to bring
this about!
The
"planners" theme is growing more popular:
The urban planners have failed, creating whatever condition
is being deplored. They have allowed themselves to be
influenced and corrupted by the people whose lives they
are planning, and as a result they have surrendered
the purity of their vision. Planners must stand firm
and insist that the populace live as it is told, and
they need more power to overcome the forces of greed
and private interest. Come the revolution, you will
sit in sidewalk cafés drinking latte.
The
urban whine is infinitely repeatable. I was recently
told that goldfish have such poor memories that every
trip around the bowl is a new experience. I do not know
about goldfish, but the proposition is clearly true
for reporters. They have been writing the same stories
for decades now, each time with breathless outrage.
Developing a memory might dull the edge. They are also
innumerate, so they do no arithmetic on mundane things
such as the population densities necessary to support
a subway, a large supermarket, or a soccer field. They
do not know, or do not mention, that every time a Washington
Post editor takes a round trip on a Metro train
it costs the public $20 in subsidies.
Nor
do these reporters stop to wonder why it is that the
conditions they deplore so much--whatever they happen
to be at the moment--have worsened steadily as the planning
profession has gained increasing power and as private
property rights have received decreasing legal protection.
Could it be that these events are related? As Bernard
Siegan notes in his new book Property and Freedom,
the city of San Diego had eight zoning districts in
1952, 16 in 1962, and over 200 in 1993, each with its
own rules on land use and development. Yet people are
still complaining. It seems unlikely that increasing
the number of districts to 400 or making the rules even
more complex will improve things.
Given
the success of deregulation in other spheres, perhaps
more property rights and less planning would produce
metropolitan configurations that better satisfy the
great variety of human needs and desires. If you are
willing to entertain such wild thoughts, if you have
taken too many trips around the bowl of urban whine,
dip into Siegan's book instead. It is not for the casual
reader, but anyone who wants to arm himself with facts
for the summer round of suburban deck parties at which
everyone bemoans the rise of the suburb will find in
Property and Freedom a veritable arsenal.
A
professor of law at the University of San Diego, Siegan
has written extensively about the role of the courts
in protecting the right to own and use property. In
his 1980 book, Economic
Liberties and the Constitution, he argued that the
New Deal retreat from the protection of economic rights
was mistaken. Siegan also spent many years as a practicing
lawyer, which gives him insight into the realities of
zoning boards and the never-ending efforts of property
owners to rob each other with the government's help.
And he lives in California, which is an education in
itself about the dream that government fiats will make
the world perfect, if only we add a few more.
Property
and Freedom consists of three loosely related parts.
The first 75 pages are devoted to two propositions.
First, Siegan notes that the right to own and use property
is an important human right. One of the oddities of
liberal thought in the 20th century is its emphasis
on the Constitution as the protector of speech and sex,
and its neglect of material protections, despite the
fact that for most people most of the time arbitrary
government action that deprives them of "the fruit
of their labor, savings, energy, and knowledge,"
in Siegan's phrase, does far more damage than other
inhibitions. He finds it strange that liberals who regard
legislators as both short-sighted and malevolent when
they deal with freedom of speech or the press will,
when those same legislators decide to regulate property
issues, assume them capable of god-like disinterest
and foresight.
The
second point in the first section of the book is that
the Founders understood the importance of protecting
property and devoted serious attention to the topic.
The roll call of advocates and quotations is impressive
and useful. Even a good libertarian might have an authoritarian
fantasy in which legions of ahistorical planners and
journalists are chained to the tables in their sidewalk
cafés and forced to listen to selections from
this part of Property and Freedom.
In
the second part of the book, consisting of about 100
pages, Siegan looks at the basic cases on the constitutional
prohibition against taking property without compensation
and explains what they mean in the context of government
regulation. He divides this material into the conventional
three periods: pre-1927, when the courts tried to give
meaning to the protection; 1927 to 1987, when the Supreme
Court left the field to the triumphant urban planners;
and post-1987, when the Court re-entered the fray. Unless
you are a lawyer with a case, you will find this material
dry, and you would have to be pretty mad at those reporters
to make them listen to it all.
I
disagree with Siegan on some of the legal technicalities.
He likes a particular three-part verbal test used by
the Supreme Court to determine whether a "taking"
has occurred under the Fifth Amendment and thinks it
provides a solid foundation for progress. I think it
is confusing drivel. Siegan seems to believe that legal
thought in this area is making orderly progress. In
my view, arguments in a takings cases are not a careful
analysis conducted within a logical structure. Instead,
the parties toss quotations at each other, as if lobbing
mortar shells at an unseen target in the hope that one
will hit. Siegan lumps arguments about takings with
concepts of due process and equal protection. I think
these concepts must be kept separate, not just as a
matter of legal craftsmanship but to enhance political
analysis.
Despite
these quibbles, Siegan has a lot of interesting things
to say about this body of law, and I know I will return
to the book next time I need to get legal.
The
third part of Property and Freedom, about 50
pages long, returns to material of more general interest:
the real-world consequences of zoning and land use planning.
It is time to chain the reporters back to the tables
and resume the readings. Siegan notes the immense costs
of local regulations, many of them unnecessary to protect
public health or safety, and their impact on families
of modest means. He documents the tendency of the wealthy
to vote for increasing regulations and the poor to vote
against them, an accurate indicator of winners and losers.
He notes that zoning keeps expanding on the foundation
of its own failures: "[Zoning] usually does not
work as represented....Each new strategy is touted as
a remedy for the failings of the old, but it too will
fail to measure up to the expectations of its proponents."
Siegan
examines the experience of Houston, which relies on
restrictive covenants enforced by the city rather than
zoning. He looks at the California Coastal Commission
and other institutions that have sent housing prices
in the Golden State soaring. He notes that many environmental
laws are designed to secure the personal pleasure of
their supporters rather than any real environmental
need. He punctures commonly heard arguments that the
United States is running out of space and needs to cram
its citizens together into ant heaps. He observes the
tendency of zoning boards to be captured by the most
vocal and their indefatigable efforts to foist costs
onto outsiders.
In
the end, Siegan is talking about two different philosophies
of government. One relies on control by experts, detailed
planning, elitist arrogance, and an astonishing disregard
of reality. The other relies on respect for individual
rights, the amazing ability of markets to produce a
rich variety of physical environments, and the genius
of an inventive and free people. For too long, the first
philosophy has dominated our metropolitan areas. The
time has come to stop using its history of failure as
the rationale for yet more arrogance and flights into
unreality, and to try the second.
Contributing
Editor James V.
DeLong is the author of Property
Matters: How Property Rights Are Under Assault--And
Why You Should Care (The Free Press).
JAMES
V. DeLONG
Washington
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