Remembering what we have lost… thoughts while looking at the embers of the Constitution

This is a follow-up to See the last glimmers of the Constitution’s life…, suggesting that the euphoria is undeserved about the Heller decision affirming our right to bear arms (see Zenpundit for a thoughful example).   Our political rights — the ones limiting government’s power, focus of the Constitution and Bill of Rights — peaked with the battles from 1930 – 1969 over the First Amendment (freedom of the press) and (far more important) the Fourteenth Amendment (equal protection).

This period also saw expansion of government and increased focus on equality over liberty — which have inevitably slowly rotted away the foundations of our Constitutional regime.  In return we have gained greater personal autonomy.  Although on our way to serfdom, we can obtain contraceptives and abortions while practicing a wider range of sexual activities.  Some think this a fair trade.

For a powerful analysis about one aspects of the Constitution’s fading influence, see “Lessons for gun rights supporters from the property rights experience” at The Volokh Conspiracy (26 June 2008).  Too rich and detailed to be properly excerpted here, I most strongly recommend reading it.  Understanding the fading away of property rights in America (or rather, one aspect of this) is an antidote to the euphoria about the Heller decisions about the right to bear arms.  Here are snippets, to encourage you to read the Volokh Conspiracy post.

Part One

From the 1930s to the 1980s, federal courts almost completely abandoned the protection of property rights, with the important exception of requiring “fair market value” compensation for complete physical occupation of property by the government.

During that time, the courts allowed property to be condemned for virtually any reason that government officials chose to give (despite the Fifth Amendment’s requirement that property can only be taken for a “public use”), and also held that virtually any regulatory restriction on property rights short of complete physical occupation did not count as a “taking” that requires “just compensation” under the Takings Clause. One can tell a similar story about the federal courts’ approach to the Second Amendment during the same period.

Since the 1980s, the Supremes have issued several decisions that expand protection for property rights in various ways.  Even Kelo v. City of New London was an improvement over previous precedents.However, the net result has been only a slight increase in genuine judicial protection for property rights. Although the Court has trumpeted its new-found respect for property and even emphasized in Dolan v. City of Tigard that it no longer considers property rights a “poor relation” among constitutional rights, the actual results of its decisions belie these rhetorical pronouncements. For the most part – as far as the Supreme Court is concerned – it is still the case that government can condemn property for virtually any reason, and still true that property owners can’t get compensation for all but a few of the most extreme “regulatory takings.” The reasons for this outcome are instructive, as they apply with equal force to gun rights. …

I. The Ideological Split Over Property Rights on the Court

With very few exceptions, the effort to strengthen protection for property rights was categorically opposed by the Court’s liberal justices. Any property rights case that got to the Court almost starts with four guaranteed votes in favor of the government. This has two important effects. …

First, any division in the ranks of the conservative justices is likely to be fatal for property rights in the case at issue. …

Second, and perhaps more important, it is extremely difficult to establish strong protection for any constitutional right if such protection is supported by jurists on only one side of the political spectrum. …

II. Implications for Gun Rights

… As with property rights, the ideological division on the Court also leaves any gains vulnerable to future reversal in the event that a Democratic president is elected. The liberal justices’ opposition to gun rights is also shared by the vast majority of liberal judges on the lower courts. …

Part Two

However, the experience of the struggle for judicial protection of constitutional property rights suggests that recognition of the mere existence of a right isn’t enough. If the scope of the right is defined narrowly by courts, recognition won’t mean much in practice. The history of constitutional property rights is instructive in this regard.

I. Recognizing Property Rights Without Actually Protecting Them

Unlike in the case of the Second Amendment right to bear arms, the Supreme Court has always recognized that the Fifth Amendment’s Takings Clause and other property rights provisions in the Constitution protect individual rights. However, since the 1930s, the Court has defined the scope of these rights so narrowly that they get very little protection in practice. …

… As a result, the Court still lets government condemn virtually any property for virtually any reason. In theory, there is an individual right here; in practice, not so much.

… Thus, property owners have little or no real protection against regulatory takings – despite the Supreme Court’s recognition of an individual right.

II. Implications for Gun Rights

… In sum, judicial recognition of a constitutional right is only the beginning of the struggle to provide genuinely effective protection for that right. It would be a big mistake to assume otherwise.

Update:  Another cautious voice on the Heller decision

Winners’ Test – The Supremes’ Gun Ruling“, Glen Reynolds (the “Instapundit”, Professor of Law at the University of Tennessee), New York Post (27 June 2008) — Excerpt:

I confess that I was one of the Second Amendment scholars who doubted that there were five votes on the high court to support an individual-right view of the Second Amendment.  I’m happy to be wrong about that, but there were only five such votes – demonstrating how narrow the margin was, and how out of touch the court is with the American public, which believes the Second Amendment protects an individual right to arms by a 3-1 margin.

… But winning in the Supreme Court is just the beginning of the story. Even the biggest civil-rights victories have taken years to percolate through the lower courts, often in the face of foot-dragging or outright resistance from lower-court judges, states and municipalities.

Brown v. Board of Education declared racial segregation unconstitutional in 1954, but it took a decade or more of slogging to make its promise bear fruit – and even then Congress had to give things a boost by passing the 1964 and 1965 Civil Rights Acts.

By contrast, in the 1990s the Supreme Court decided a series of cases narrowing Congress’ powers to regulate all sorts of things under the rubric of “interstate commerce.” But there were no hordes of public-interest lawyers to pick up on those decisions and bring new cases in the lower courts.  Without that pressure, the lower courts were free to ignore the Supreme Court’s efforts to cut back on federal meddling – and that’s what they did, to the point that some called it a “constitutional revolution where no one showed up.”

The Commerce Clause is Article One, Section 8 of the US Constitution:  “Congress shall have the power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”  For some examples of the Commerce Clause, see “Pot Luck – A victory for federalism“, Jacob Sullum, Reason magazine (19 December 2003).

Summary:  results of the Heller decision

  1. Lower courts might impede or prevent enforcement of this ruling.
  2. State and local governments will administratively render it ineffective.
  3. Changes in the Supreme Court’s membership will lead to it being restricted in scope, and eventually overturned.

Our regime depends on love of freedom and the foundation of our freedom — The Constitution.  As those things fade in our hearts no Supreme Court decisions can help.  They are just milestones — good or ill markers on the road — to the end of our regime.

What comes after that will show the true character of the American people.  The Constitution was an improvement over the Articles of Confederation.  Will we learn from this, so that the next regime improve over our current one?

Please share your comments by posting below (brief and relevant, please), or email me at fabmaximus at hotmail dot com (note the spam-protected spelling).

Other posts about America’s new political order

  1. Forecast: Death of the American Constitution (4 July 2006)
  2. The Future of America – Why wait? Read tomorrow’s news … today! (part 2) (17 July 2006) — Some reasons why the Constitution is dieing in our hearts.
  3. Diagnosing the Eagle, Chapter III — reclaiming the Constitution (3 January 2008)
  4. The Constitution: wonderful, if we can keep it (15 Feburary 2008)
  5. Congress shows us how our new government works (14 April 2008)
  6. See the last glimmers of the Constitution’s life… (27 June 2008)

Even more important, do not forget the good news about the American experiment.


8 thoughts on “Remembering what we have lost… thoughts while looking at the embers of the Constitution”

  1. I realize that you are limiting the scope, but….

    There has also been substantial abridgment in the forgotten 9th amendment (where you will find privacy and lots of Locke and Magna Carta rights hiding), and the tenth amendment further eroded in the post civil war period by radical expansion of the consideration found in the commerce clause.

    The 9th amendment though not a full on refutation of personhood for the corporate entity bolsters the claim that a protected individual can only be those who are people. Each of the rights supports the others in a nicely woven tapestry of logic and reference. Some might argue that the entirety of the amendments “Bill of Rights” were abridged by the results of the Civil War.
    Fabius Maximus replies: Powerful points. The 10th is esp dead: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    De facto it means “The rights not specficially given to the people are reserved for the Government. And some that are specifically given can be given to the government.”

  2. You write: “Although on our way to serfdom, we can obtain contraceptives and abortions while practicing a wider range of sexual activities. Some think this a fair trade.”

    The weird thing is, no one I know wants to be a serf. I think if it were just a matter of standing up for Constitutional liberties as a way of avoiding serfdom, people’d do it. It seems though that erosion of Constitutional liberties is actually only a part of what’s going on. It’s virtually impossible to participate in the modern economy without pledging yourself to some institution. This seems like a much bigger part of our serfdom. And it’s absolutely unclear how to fight this part, short of signing onto some very discredited ideologies with a history of very ugly results.

    Within this context, the sex-stuff, as far as I can tell, comes more from an attitude of ‘Could you at least leave me alone while I’m at home’–an attitude of exhaustion really–then the thought that we should give up control of our lives in exchange for kinkiness.
    Fabius Maximus replies: The citizens of the late Roman Republic may not have wanted to become subjects of the Empire, but the burden of self-government grew to great for them to bear. The predominate reaction of the Romans to the death of the Republic was resignation, as seen in the popular philosophies of the Empire: Stoicism, Epicureanism, Hedonism, and Christianity.

    How will Americans react when they realize that the Constitution has died? That will show our true character.

  3. “Thus, property owners have little or no real protection against regulatory takings – despite the Supreme Court’s recognition of an individual right”

    Or, perhaps, what has happened is an increasing realization that in a no-longer-rural, industrialized U.S., what my neighbor does on “is” property afects me on mine. So I regulate his ability to site a high-level nuclear waste disposal facility next to my cattle ranch to help insure that my cows don’t glow in the dark. I regulate his “right” to open a sex-offender treatment facility next to my supermodel cosmetology school.

    I find this constant prattle about “regulatory takings” one of them most loathesome stalking horses of the Right. While I wouldn’t want my neighbors to get together to “legislate” me out of my house, I haven’t seen anything like this in practice. What I have seen, OTOH, is tons of poorly concieved, badly funded get-rich-quick schemes go bust, leaving the neighbors with a costly, messy clean up long after the “property owner” has blown town. Or, in the case of the part of urban Oregon I live in, a land-rush greed that has led to paving some of the richest farmland in the world just in time to discover that all those “urban growth boundries” the takings-haters love to bitch about? They might have helped us eat produce trucked ten miles to market at $4.50/gallon rather than 1,400 miles from Mexico or 4,000 miles from Argentina…

    John Robb might warn that one of our biggest problems isn’t that we’re regulating our neighbors too much, it’s that we’re regulating and planning for the economy of yesterday instead of the economy of tomorrow. I suspect that we’ll find that that farmer who was bitching and moaning about not being able to subdivide his cornfield will be a happy little camper in ten years with fuel at $8.00/gallon when his produce is the only thing people can afford at the Winn-Dixie.

    I agree that we’re certainly morgaging our liberty for security. But I suspect is has more to do with DBake’s economic dependance than some Big Guvamint conspiracy to prevent us from building a house for the kids-in-law on the back 40.
    Fabius Maximus replies: This is a wonderful example of how the State grows, offering to protect against extreme outcomes — while the power is actually used to for the benefit of powerful political interests.

    Here’s a test. You list all instances of “regulatory takings” used to prevent “my cows glowing in the dark”. I will list all the instances of property taken to faciltiate constuction of a super-store, factory, or other commercial development — often at low compensation for the “owner.”

    Since no nuke has been built in the the US for thirty-plus years, I suspect my list will be far longer than yours.

  4. what my neighbor does on “is” property afects me on mine.

    The maxum, “No man has the right to use his property to harm that of another,” has nothing to do with the Constitution and everything to do with the Common Law.

    It rests upon the doctrine of nuisance, which was recognized 500 years before the Framers were glimmers in their father’s eye:

    Nuisance is a common law tort. It is one of the oldest causes of action known to the common law, with cases framed in nuisance going back almost to the beginning of recorded case law. Nuisance signifies that the right of quiet enjoyment is being disrupted to such a degree that a tort is being committed.

  5. I agree with FD Chief. I haven’t seen any of this regulatory taking in my part of northern California. I think the days of mandated as well as voter-approved giveaways to big box retaileers are fading fast.

    On the other hand, when sensible policies of urban infill are proposed, they’re often defeated by NIMBY local residents. In my view, and Robb’s too, I believe, “community” is a more important concept for the future than individual liberty. America’s ugly and disfunctional suburban culture — the main reason why Europe is a nicer place to live — was sold as a dream of individual freedom: every man with his own 2/3 acre, his tv room, his 2-car garage.
    Fabius Maximus replies: How do you know of any “regulatory taking” actions in N. California? These are generally done against middle class people, with insufficient wealth to fight it out in Court. The local papers are uninterested in these things.

    To see the government’s attitude to our rights one must look on the frings of society — where local journalists and 60 minutes seldom venture. For exteme examples of this look at newsletters of Community Legal Clinics and the Home School Legal Defense Fund. They show the casual contempt of government employees towards anyone who cannot easily spend $10,000 on attorney fees — our modern test for full citizenship.

  6. Speaking of N. Calf. & Fire Cheifs, this might be a very interesting week ahead. So how does this factor into the constitutional right to bare fireworks? Can you do absolutely anything you want, so long as it dosn’t effect someone else ?

    Does anyone here Smoke while pumping gas? i’d like to hear from you.

    One problem is that we can’t force common sense, individual responsibility, or good judgement, and so laws naturaly are made and gravitate to the lowest common denominator. ;0)

    Editorial: Governor should declare statewide fireworks ban“, Sacramento Bee (27 June 2008) — “Charities will suffer, but risk of more fires across California has to be the top concern”

  7. “I will list all the instances of property taken to faciltiate constuction of a super-store, factory, or other commercial development — often at low compensation for the “owner.”

    No argument that the eminent domain power, like many powers we allow fallible men to use while in office, is abused. I’m sure that there are a fair number of cops that stop people for driving while black. I would say that using that to argue against traffic laws would be an overextension of the problem. I would differentiate between eminent domain confiscation and land-use and other property regulation. One may be clearly called a “taking”, while I think the other is MUCH less clear-cut.

    We actually ran this experiment here in Oregon, where two years ago we passed an amendment to our constitution (Measure 37 or M-37) requiring any governmental body that regulated development to either compensate the landowner for the “taking” or allow the development. The poster child for this was the ery sort of person you describe, a lovely grandma who “only wanted to build a home for her kids and grandkids” but was cruelly stymied by the evil land use regulators. Grandma won and the measure passed.

    Hmmm. Guess what? When the thing went into effect the primary M-37 claimants turned out to be large, well-funded development companies and landowing corporations like Weyerhauser. The biggest beneficiaries stood to be several timber companies, who filed immense M-37 claims for supposed ubdivisions located miles from urban centers in rural timberland. Fine, in as much as these companies have the right to profit off their lands as much as anyone. But where does this stop? In Oregon we decided it stops at urbanizing much of our farm and timberland and heavily modified – in effect, repealed – M-37. Was this “fair” to the landowners? Probably not. Do I think it represents a blow to essential liberty? It depends on whether you feel you liberty demands that you be allowed to do anything, ANYthing, on your land. We clearly disagree on this.

    I’ll quickly agree that our Constitution is becoming a formality, but I’m not so sure that land-use regulations are part of the problem…
    Fabius Maximus replies: It never is a problem, until your land is being taken. Regulations on other people’s land are always either good or neutral.

  8. Americans misunderstand the threat to their liberties precisely because of the success of our hitherto free and unregulated society. From it we derived immense benefits, not the least of which was security for one’s property and respect for and from authority. What so many of us do not realize is that that society is possibly 60 years out of date, if not more. Collectivism has eaten away at the original structure and associational (including freedom from immigration of unwanted foreigners), property, gun and speech rights have been diminished. It’s been so piecemeal and under the radar that we have failed to detect it and so we have operated on the false assumption that all is well.

    How else to explain the blithe decisions to elect the oddity that Mr. Obama is considering his astounding activities and associates in Chicago? Being Alice Palmer’s designated heir and his being a chalice bearer for Jeremiah Wright really do tell the whole story.

    The unimaginable — a loss of liberty — has proved so far to be, well, unimaginable to a great many Americans who mistakenly assume that the decency, rationality, and regularity made possible by earlier thinkers and leaders endure. They do not. Our chief executives of the bye gone era would never have groveled before an emperor or desert chieftain. Now its the present one’s first order of business. A world turned upside down, indeed.

    With luck Mr. Brown’s victory signals that a light has gone on in a few more heads but I doubt it. Somnolence is the order of the day. America is on autopilot and there’s no need for a maintenance stop because we have a Constitution, don’t you know. Our culture and institutions are infinitely adaptive and absorptive. All change is for the good because what does America stand for if not progress?

    All is well.

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