In a recent post on Prawfsblawg, NYU lawprof Rick Hills – a major federalism scholar – argues that federalism concerns justify strictly limiting federal court enforcement of constitutional property rights:
SCOTUS’ decision yesterday in Stop the Beach Renourishment v. Florida Dep’t of Environmental Protection once more illustrates the axiom already established by many other decisions: Absent the sort of majoritarian passion that the Fourteenth Amendment was designed to prevent, SCOTUS cannot, should not,and will not centralize the definition of “property” through a vigorous federal takings doctrine….
I can already hear the protests of my centralizing friends who love “rights absolutism,” declaring that these are matters of federal right that must be defined by federal judges. In my view, this sort of rights absolutism confuses constitutional supremacy and Article III supremacy: Just because a right is a federal right does not mean that it must be defined by federal courts. Indeed, Stewart Sterk has nicely shown that takings rights in particular are permeated with federalism concerns: In cases like Kelo, San Remo Hotel, and Tahoe-Sierra, the feds essentially deputize the state courts to define the scope of federally protected “property….” A majority of SCOTUS will (quite sensibly) not want to be dragged into the minutiae of state property law — or, for that matter, state regulatory policy on guns, state family law on parental powers, and a host of other concerns that are ostensibly the subject of centralized federal rights. This overriding concern of comparative institutional competence, I predict, will lead the Roberts Court will behave exactly as did the Rehnquist Court with takings cases (and, I hope, gun cases, parental rights cases, affirmative action cases, among others): They will defer heavily to state judges about the meaning of “property,” absent some indication that confiscatory minded voters were targeting isolated landowners in a spate of majoritarian greed.
I. Hills’ Argument for Judicial Deference to the States.
Hills’ argument applies not just to federal judicial enforcement of constitutional property rights but to enforcement of almost any constitutional rights against violation by state governments. For example, whether a search is “reasonable” under the Fourth Amendment often turns on highly localized factors that vary much more than state property law does. Local police departments and state courts know far more about these things than federal judges do. Similarly, whether a particular form of speech poses a severe enough threat to public safety to justify restriction will also vary greatly from state to state and locality to locality. Thus, Hills’ position is not just an argument for judicial deference to the states in the property rights area. It’s an argument for judicial deference across the board. I’m not going to generally defend robust federal judicial review of state government actions here, except to say that the admittedly inferior knowledge of federal judges is often outweighed by their superior incentives: they have fewer political ties to the state and local government officials whose actions they are reviewing. Readers who buy Hills’ argument, however, should recognize that it sweeps far beyond property rights.
Hills does make an exception for cases where “confiscatory minded voters were targeting isolated landowners in a spate of majoritarian greed.” But I don’t see why violations of constitutional rights caused by “majoritarian greed” require any greater judicial policing than those pushed through by small but powerful interest groups because the majority of voters are either ignorant about what is going on or indifferent. Many violations of constitutional property rights fall into the latter two categories, as powerful interest groups manage to use eminent domain to condemn the property of the politically weak. Nothing in the text or original meaning of the Constitution distinguishes between those violations of constitutional rights supported by a majority of voters and those instigated by small interest groups or self-dealing government officials. The issues of “comparative institutional competence” that worry Hills are no less present in cases of “majoritarian greed” than in cases where a state or local government violated constitutional rights for some other reason.
II. Do Federalism Concerns Explain the Supreme Court’s Very Weak Enforcement of Constitutional Property Rights?
I also think that Hills is wrong in his empirical claim that federalism concerns explain the Supreme Court’s reluctance to protect property rights. As noted above, the same federalism concerns apply to federal judicial enforcement of many other rights against state governments. Yet the Court is far less reluctant to intervene against the states on those issues.
Moreover, the Supreme Court has taken exactly the same approach in property rights cases involving the federal government. Berman v. Parker – the first case in which the Supreme Court ruled that the Public Use Clause allows the government to condemn property for virtually any reason – involved a federal taking in the District of Columbia.
Finally, it’s worth noting that those Supreme Court judges least willing to enforce property rights have also been the ones most eager to endorse virtually unlimited federal power in cases such as Gonzales v. Raich. This suggests that their commitment to federalism is extremely limited at best.
In sum, bias against property rights, not commitment to federalism, explains the Court’s generally deferential posture in this field, which contrasts sharply with its much more aggressive approach in enforcing “noneconomic” constitutional rights.
III. Why Federalism Doesn’t Provide Reliable Protection for Property Rights.
Hills’ argument does raise an important question: is there a contradiction between my and many other property rights’ advocates support for decentralized federalism on the one hand, and our advocacy of strong federal judicial intervention to protect property rights on the other?
Perhaps we are just hypocritical. But I think there is good reason to be more suspicious of state and local policies on property rights than on many other issues. As I argued in a post explaining my (qualified) support for federalism, the system works best when citizens can “vote with their feet” to escape state and local governments with flawed or oppressive policies. Land, however, is immobile. If states abuse property rights in land, the owner can’t take the land with him and move it to another state. Thus, federalism is much less effective in protecting land and other immobile assets from exploitation by state and local goverments than it is with respect to rights you can “take with you” when you move. I made this argument in greater detail in this article (pp. 221-23)
This also suggests that we need not worry so much about state abuse of property rights in personal property, and I think that is indeed the case. State and local governments almost never condemn mobile property even when the law allows them do so. For example, the City of Oakland famously chose not to condemn the Raiders to prevent them from moving to Los Angeles, even though California courts ruled that it could. Local and state officials know that targeting mobile property is a losing proposition because the owners can so easily move it elsewhere.
Finally, I should note that my argument for federal judicial protection of immobile assets isn’t limited to property rights. For example, prisoners held in state prisons also can’t move elsewhere if state officials abuse their rights. This, in my view, strengthens the case for federal court enforcement of Eighth Amendment constraints on state penal systems.