This Property is Condemned

Sometimes you can better understand the rule by meeting the exception to it. Such an example may be law school teaching on property rights in comparison with University of Chicago professor Richard A. Epstein’s vigorous defense of same. “As a matter of first principle, I take the decidedly unpopular view that the takings clause (and other constitutional provisions) commits this nation to a system of strong property rights and limited government,” Epstein writes in Supreme Neglect: How to Revive Constitutional Protection for Private Property. “This view is at war with the major economic and social reforms of the New Deal and beyond.”

Not to mention the treatment of such topics in the academic world in which he moves. “I am, of course, well aware that the views expressed in this book are out of the proverbial intellectual mainstream, for which I offer no apologies,” Epstein writes in the preface to Supreme Neglect.

But then, that depends on whose intellectual mainstream you are talking about. Later in the book, Epstein notes that “With rare exceptions, people who are asked to choose which of two societies they would prefer to live in—without knowing their social role—reject one in which they stand equal chance of being master and slave and prefer one that requires each person to respect the like liberty of others.”

In his seminal book Takings, he looked at the data and concluded, “Oh, yes, the entire New Deal is unconstitutional.” Epstein was “ferociously attacked” for this conclusion, he remembered in a March 6 appearance at the Cato Institute here.

The Cato Institute is a libertarian think tank. In that same forum, while conceding that Supreme Neglect is “elegantly written,” Georgetown law Professor J. Peter Byrne avers that the book’s assertions are “not of the world in which I live.”

The affable, erudite author and educator who once clerked for Supreme Court Justice Lewis Powell went on to prove just that. Byrne alleges that environmental regulations expanded because “It became possible to understand a greater variety of harms.”

For his part, Epstein asserts that environmental takings took place on a widespread scale due to “academic deconstruction of words” and “no responsible opposition.” In the question and answer session, Epstein showed that he may have a greater appreciation of the plight of property owners than Byrne, regardless of what income level they represent.

An audience member pointed out that in New Jersey a certain percentage of affordable housing must be set aside in every locality. “What you describe sounds very peculiar,” Byrne said.

“Not in New Jersey,” the moderator, Roger Pilon, pointed out. Pilon himself is a constitutional scholar who can claim practical experience in the U. S. Justice Department during the Reagan years.

“I see nothing wrong in taxing new developments to finance affordable housing,” Byrne stated. Strapped homeowners might beg to differ as their own domiciles become unaffordable.

“You need to strike every one of these statutes down,” Epstein claimed. “All of this is designed to alleviate the problem of people with no children paying for the schools of people with children.”

“Public education is a creature of the 1860s and 1870s, not a God-given right.” Moreover it is a creature we may have passed the high water mark on decades ago, at least if you are looking at actual educational achievements.

Epstein has been at the Chicago School since 1972, when Milton Friedman was still based there. More recent UChi hires are not so impressive.

Epstein’s book was published by the Oxford University Press. Oxford apparently has higher standards than most American university presses.

Malcolm A. Kline is the executive director of Accuracy in Academia.