CATO SUPREME COURT REVIEW 2001-2002

CATO INSTITUTE

Contents

ForewordRestoring Constitutional Government Roger Pilon.....................................................................................................viiIntroduction James L. Swanson.......................................................................................................................1Property RightsThe Ebbs and Flows in Takings Law: Reflections on the Lake Tahoe Case Richard A. Epstein............................................................5FederalismWhen State Dignity Trumps Individual Rights Robert A. Levy..........................................................................................31The First AmendmentRegistering Publius: The Supreme Court and the Right to Anonymity Jonathan Turley...................................................................57Judicial Elections and the First Amendment: Freeing Political Speech James L. Swanson...............................................................85Cyberspace Cases Force Court to Reexamine Basic Assumptions of Obscenity and Child Pornography Jurisprudence Robert Corn-Revere.....................115EducationSchool Choice: Sunshine Replaces the Cloud Clint Bolick..............................................................................................149Criminal LawAn Eerie Efficiency Timothy Lynch...................................................................................................................171Redefining a "Crime" as a Sentencing Factor to Circumvent the Right to Jury Trial: Harris v. United States Stephen P. Halbrook.......................187The Drug WarTenants, Students, and Drugs: A Comment on the War on the Rule of Law Roger Pilon...................................................................227Coming UpOctober Term 2002 Erik S. Jaffe.....................................................................................................................253Contributors.........................................................................................................................................263

Chapter One

Richard A. Epstein

Introduction: A Change in the Winds of Fortune

For the Framers of our Constitution, the principles of good government started with the protection of private property-that guardian of all other rights. The instinct behind their judgment is easy to grasp just by imagining how the world would look if governments could consistently disregard property rights. State bureaucrats could confiscate land at will, not just for public works, but to line their own pockets. Government officials could harvest with impunity crops planted by ordinary citizens, and systematically disrupt all private efforts at long-term planning. It takes little ingenuity to see the moral bankruptcy and economic ruination inherent in any regime devoid of property rights. Nor, ironically, would any of today's preferred freedoms be worth the paper they were written on. How could people pray if they could not keep government officials from snatching away their houses of worship? How could they criticize the government if not allowed to own printing presses and broadcast studios?

Fortunately, none of that has come to pass. One reason for our political stability is found in the Takings Clause of the Fifth Amendment: "nor shall private property be taken for public use without just compensation." By and large, that clause has been sensibly (not ideally, but sensibly) interpreted to block government from seizing and occupying property-the greatest peril to individual freedom-without compensating the owner. Regrettably, the public use requirement has been watered down, in the name of urban renewal or land reform, to allow takings for private benefit. But in all cases of occupation, the courts have adhered to a well-nigh per se rule that requires compensation whenever government occupies land, including some tiny fraction of a larger holding.

Cases of seizure and occupation are only half the story, however. Government officials (like private individuals) are often tempted to seek the indirect path when the direct route is blocked. If outright occupation of the land requires payment of compensation, why not leave the owner in possession of the land but strip him of his rights to use and dispose of it? Then some particular end, such as urban growth control or the elimination of potential competition, can be advanced without triggering the compensation requirement. To keep matters in perspective, such restrictions on land-use do not pose dangers equal to those arising from unlimited direct occupation. But they are not small potatoes either. In Euclid v. Ambler Realty Co., the seminal zoning case, the Supreme Court sustained an ordinance that reduced the value of the land almost 75 percent. (The ordinance required that a 68-acre plot slated for an automotive plant be devoted exclusively to single-family housing.) The power of regulation becomes still more dangerous when, as is the case with landmark preservation and wetland programs, administrative officials are given broad discretion to designate which lands will or will not be subject to an ordinance.

Given their pervasive use and powerful consequences, such regulations have become the focal point of intense judicial controversy. Over the past 15 years, the Supreme Court has grappled with multiple forms of land-use regulation. But its treatment of the issues has at best been halting and incomplete, even if owners have come out on top for the most part. It is no surprise that these decisions often reflect the now familiar right-left split on the Court, with the five conservative justices (Rehnquist, O'Connor, Scalia, Kennedy, and Thomas) arrayed against the four liberals (Stevens, Souter, Ginsburg, and Breyer). But as is equally apparent, that coalition of five contains a subcoalition, with Justices Kennedy and O'Connor precariously positioned midway between the three conservatives and the four liberals.

In the 2000 term, the five-justice coalition held as Justice Kennedy wrote Palazzolo v. Rhode Island, one of the Court's stronger and more coherent decisions dealing with property rights. Palazzolo's central holding was that the state could not immunize itself from takings challenges simply by passing a statute and then claiming that individuals who acquire property thereafter are barred from challenging it because they took title "with notice" that the statute was on the books. The Court's "per se" rule-the phrase quickly becomes a term of art-held that the subsequent owner is entitled to raise the same challenges the previous owner could raise. In Palazzolo, the subsequent owner was the sole shareholder of a corporation that had been involuntarily liquidated. If he were automatically bound by the new regulation, then it would have been just a matter of time before all owners were so bound: over time, after all, corporations are liquidated; partnerships dissolved; land transferred, by sale, lease or foreclosure, divorce or death. For the time being, Palazzolo put an end to the incipient uncertainty in land titles.

Yet the mood of the Court proved most unstable as the pendulum swung sharply in the opposite direction this past term in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency. The case involved a series of temporary land-use ordinances that prohibited new...