Tuesday, July 03, 2007

A Belated Review of Epstein's Takings (1)

A couple months ago, I decided to order Richard Epstein's Takings: Private Property and the Power of Eminent Domain, possibly the most important libertarian work of legal theory of the last twenty-five years. Epstein meditates on the Fifth Amendment's "nor shall private property be taken for public use, without just compensation" (the "takings clause"). He rejects the limited reading that American courts (including conservative judges like Rehnquist and Scalia) have given to this clause since the New Deal. In the end, he decides that the US Constitution prohibits most of what the government currently does, including progressive taxation and welfare, although he allows for a bigger role than more stringent libertarians might.

Unfortunately, the radical conclusions may have had counter-productive effects on the protection of property rights. Behind every leftist attack on the legal dimensions of NAFTA and other investment treaties, or on the entrenchment of property rights, and behind a lot of judicial nervousness, is the feeling that if property rights are real, Epstein's conclusions might follow. During his confirmation hearings and before "Long Dong Silver," Jospeh Biden tried to get Clarence Thomas to renounce any support of Epstein's book. One of the criticisms levelled at Janice Rogers Brown when she was considered for a nomination to the federal judiciary by Bush was that she had cited Epstein favourably in a case -- even though she cited him for examples of non-takings, which is rhetorically equivalent to citing Catherine Mackinnon for pickup lines that aren't sexual harrassment.

I am going to break up this review into a number of posts. The next one will explain Epstein's system and why it is (somewhat) redundant.

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