WASHINGTON, D.C. - In a modern brick building across Lafayette Park from the White House, on a one-block street called Madison Place, several judicial officers of the United States government are engaged in a ... in a ... well, in what seems to be a conspiracy to subvert it.
Not doing a bad job
of it, either.
Now, just a dad-burned minute, I
hear you say. A conspiracy to overthrow the government from within?
And United Nations troops in black helicopters are about to descend
from the skies.
But paranoia is no proof that
someone isn't out to get you. And just to add to the intrigue,
there are connections between this conspiracy, if such it is, and
the one that so recently failed to impeach the president of the
What is going on in this brick
courthouse threatens to overturn established legal interpretation
and almost a century of American governance, especially when it
comes to protecting the natural world.
with Charles Fried, solicitor general under President Ronald Reagan
and Attorney General Edwin Meese. A loyal soldier in the "Reagan
Revolution," Fried was nonetheless disturbed by a few of the hotter
heads around him. In his book about his government service, Order
and Law (Simon and Schuster, 1991), Fried wrote that "Attorney
General Meese and his young advisers - many drawn from the ranks of
the then fledgling Federalist Societies and often devotees of the
extreme libertarian views of University of Chicago law professor
Richard Epstein - had a specific, aggressive, and, it seemed to me,
quite radical project in mind: to use the takings clause of the
Fifth Amendment to put a severe brake upon federal and state
regulation of business and property.
plan was to make government pay compensation as for a taking of
property right - limiting the possible uses for a parcel of land or
restricting or tying up a business in regulatory red tape. If the
government labored under so severe an obligation, there would be,
to say the least, much less regulation."
began, in the early 1980s, what attorney Douglas Kendall called
"The Takings Project." Kendall, a lawyer for the liberal Community
Rights Counsel, has written a report on the subject from which some
of the information herein is taken, though not without checking it
As described by Fried, the project's design
was as simple as its ambitions were grand. The Justice Department
would arrange for the appointment of judges who were radical
"libertarians' influenced by Professor Epstein. Most of them were
members of the Federalist Society. Among others, this describes a
lawyer named Kenneth Starr.
The policy affected
all the federal courts, but none as sweepingly as the Court of
Federal Claims and its appellate master, the Federal Circuit Court
of Appeals, housed in that brick building on Madison
Never heard of these courts? Well, neither
have most folks. Reporters seldom visit them. Their cases tend to
be technical and impersonal, unrelated to Washington's obsessions
with race and sex. For the Takings Project, this quasi-anonymity is
an advantage. Revolutions are best begun out of the
The Court of Federal Claims was
created in 1982, and, until quite recently, all 16 of its judges
were appointed by Presidents Reagan and Bush. It has sole
jurisdiction over any claim of more than $10,000 against the United
States government, many of which concern "takings."
That's what happens when the city, county, state
or federal government takes someone's land for a park, highway,
airport or prison, for which said government must pay "just
compensation" to the owner. So says the Fifth Amendment to the
Over the years, the U.S. Supreme
Court has determined that on rare occasions a government regulation
can amount to a taking, but only if it all but eliminates the
economic potential of property. "Mere diminution in value of
property, however serious, is insufficient to demonstrate a
taking," said the high court.
But that was before
the Takings Project, before Richard Epstein's assertion that "all
regulations, all taxes, and all modifications of liability rules
are takings of private property prima facie compensable by the
state," and before the current Court of Federal Claims began making
rulings under Epstein's influence.
Nevada rancher brought a seemingly absurd case seeking compensation
because elk re-introduced on national forest land were taking water
away from his cattle grazing on the public land. The government,
not surprisingly, sought a summary judgment dismissal. Chief Judge
Loren Smith of the Court of Federal Claims - Federalist Society
member and frequent guest at seminars sponsored by the Foundation
for Research on Economics and the Environment (FREE) at a Montana
resort (HCN, 7/6/98) - denied it and conducted a trial. Considering
that Smith seems never to have met a government action he could
tolerate, the rancher may well win his case.
the past few years, judges on the Court of Federal Claims and the
Federal Circuit Court of Appeals have issued a series of
pro-plaintiff decisions that would have been unthinkable earlier.
Unlike Supreme Court decisions, these cases do not set broad
precedent. But they do have consequences.
reason the Interior Department decided to compromise with timber
baron Charles Hurwitz in the dispute over California's Headwaters
Forest was Hurwitz's threat to file a takings challenge. According
to the generally accepted interpretations of takings law, he would
have had no case. According to the Claims Court's current thinking
- Professor Epstein's thinking - he would have a strong case. The
Clinton administration decided not to take the
At this point, then, we must interrupt our
historical-political account and turn to the realm of philosophy,
to examine precisely what Richard Epstein says. This is not easy.
Epstein's book, Takings: Private Property and the Power of Eminent
Domain (Harvard University Press, 1985), is, to put it politely,
not distinguished by its felicitous use of language. But it is not
indecipherable, and Epstein's argument may be summarized as
* The Constitution was written when "The
Lockean system was dominant," (p. 16), and "draws on the basic
theory developed by Locke" (p. 31), so constitutional
interpretation must be consistent with the philosophy of John
Locke, who held that "the preservation of property (is) the end of
* The takings clause of the Fifth
Amendment must be interpreted "in the way these words are used in
ordinary discourse by persons who are educated in the normal social
and cultural discourse of their time," (p.20), meaning
* Those persons must have defined "private
property" as an absolute right because English jurist Sir William
Blackstone said, "The third absolute right ... is that of property,
which consists in the free use, enjoyment, and disposal of all (the
owner's) acquisitions ..."
Epstein, "all regulation ... falls within the eminent domain
clause," (p.102) and requires compensation. Candidly, Epstein
acknowledges (or proclaims) that his interpretation means that
almost all the social, environmental, health and tax laws now on
the books are unconstitutional. And he urges judicial activism,
precisely what most conservatives abhor, to get rid of those
There is only one problem with Epstein's
argument: Every one of his points is wrong.
Locke was arguably the single greatest influence on the Founding
Fathers. But to call the U.S. Constitution a "Lockean" document
would astonish many an American historian, including Carl Van
Doren, whose highly regarded history of the Constitutional
Convention, The Great Rehearsal (Viking, 1948), mentions the
English philosopher once. Furthermore, Locke had mixed feelings,
based on religious convictions, about individual property
ownership. So Epstein "corrects' him, creating a "Lockean" system
that Locke would have opposed. Just as he corrects Blackstone by
dismissing the great (but flawed) jurist's qualification that
property rights could be limited "by the laws of the land."
Absent from Epstein's constitutional
interpretation is any awareness that some of the Founders agreed
with then-40-year-old Jeremy Bentham that the very concept of
property was created by law, meaning by government; that the need
for a uniform system of taxation was one major reason for adopting
the Constitution; and that another was a government strong enough
to "provide for general benefits, such as regulation of interstate
trade (and) development of national works," in the words of the
first resolution adopted by the Constitutional
That included regulation of private
property, which the states were then practicing. The guys who wrote
the Constitution were not doofuses. When they said "take," they did
not mean "alter" or "diminish." They meant "take."
In short, Epstein's case is not simply weak; it
is a-historic and absurd, nothing a grownup need take seriously.
Even a political soulmate, former Judge Robert Bork, said Epstein's
conclusions "are not plausibly related to the original
understanding of the takings clause."
has Epstein influenced so many seemingly smart folks? His disciples
include graduates of law schools at Harvard, Yale and University of
Chicago (Epstein's employer). As credentials go, these are not
chopped liver, and the mystery of their motivation is unsolvable in
But here is a political rule of thumb
that applies to movements left and right: Beware the Process Fraud.
Whenever someone says, "This is the preferred way of going about
things," he is really saying, "This is the way of going about
things that will benefit the folks I want to benefit." The real
goal is not the method, but the desired
Who benefits if governments, unable to
pay all that compensation, cannot regulate? Property owners, of
course, and since most of us are property owners, doesn't that mean
most of us?
No. A very small percentage of the
people own most of the property. And it is not the owners of
hundred-foot-front lots, or even quarter-acre lots, who would
benefit if Epsteinism were to triumph. It is owners of thousands of
acres and millions of dollars. The Takings Project pursues an
upward redistribution of income.
some bow to consistency, its advocates would discuss "givings' as
well as takings, and the restaurateur who had to be compensated by
the state for its imposition of a hygienic code would have to
compensate the state for the highway that brought him his
Then, consider the sponsorship.
Epstein's book was published by Harvard University Press. But it
was supported, as he acknowledges in his preface, by a grant from
the Institute of Educational Affairs. IEA was founded in 1978 by
former Treasury Secretary William Simon, now president of the Olin
Foundation, which helps fund the Federalist
Both the Society and the Institute have
also received money from foundations controlled by Richard Mellon
Scaife, who also helped fund the "investigators' who concluded that
Vince Foster was murdered. Scaife's foundations also help finance
those seminars in Montana. At least 10 of the claims-court judges
have attended the seminars, where relaxation is combined with
lectures by property-rights champions, including Richard Epstein,
who are paid for their services.
remain, one operational, one conceptual: First, why doesn't the
government appeal these bizarre claims-court decisions to the
Simple. The Takings Project has
made some headway there, too, and no one can be sure an Epsteinian
decision would not be upheld, thereby creating a broad precedent.
Justices Clarence Thomas and Antonin Scalia are almost certain
pro-plaintiff votes, with Chief Justice William Rehnquist and
Justice Anthony Kennedy likely to concur. That would make Sandra
Day O'Connor the decisive swing vote. O'Connor has been a
responsible conservative jurist. But by herself, she is a thin
The second, larger, question is: When did
money become a freedom? Not just Epstein but all the "libertarian"
or "property-rights' advocates proceed on the assumption that under
our system of government an individual has the "right" to as much
money as he can amass in the same way that he has the right to
speak, publish, assemble, and worship (or not) as he
Well, maybe he does. But where in the
Constitution does it say, or imply, that restrictions on economic
activity are identical, or even comparable, to restrictions on
expression, belief, or personal behavior? In general, our legal
tradition says the opposite.
Yes, money is
important. And some personal rights - including the right to buy,
sell, and occupy property - involve economic activity. But that
does not convert all economic activity into personal rights. Unless
Epstein and his disciples can make the case that there is some
constitutional right to all the money you can make regardless of
the consequences, the rest of us will have to assume that the poor
souls think far too much of money.
There is a qualitative difference between, on the one hand,
preventing the general community from interfering with the personal
and intellectual lives of individuals, and on the other, preventing
the general community from doing anything to protect itself, its
neighborhoods and the natural world around it. Whatever one calls
that second alternative, one cannot call it
Perhaps Professor Epstein and his
followers on the Court of Federal Claims are not merely materialist
extremists, but the cadre of a well-financed anti-democratic army.
If so, one need not be a political paranoid to wonder whether a
subversive conspiracy has established a beachhead on Madison Place.
Jon Margolis haunts
Washington, D.C., from a small town in Vermont.