Whine Cooler


Property and Freedom: The Constitution, the Courts, and Land-Use Regulation, by Bernard H. Siegan, New Brunswick, N.J.: Transaction Publishers, 290 pages, $34.95/$21.95 paper

You cannot pick up a newspaper these days without drowning in tearful stories about the condition of America's metropolitan areas. My local paper, The Washington Post, is quite fond of this urban whine. It is an unusual day when the Post does not carry several examples, centered on a few predictable themes.

There is the "sprawl" theme: An evil group of developers is building houses somewhere in the suburbs, often on big lots, thus exacerbating automobile culture and preventing the high population densities necessary for efficient mass transit and the development of liveable urban cores. A variation on this theme is "dense sprawl": An evil group of developers is building houses on small lots in the suburbs, thus overstressing the infrastructure and changing the peaceful rural character of one of the area's last refuges against galloping urbanism.

There is the "neighborhood" theme: The evil developers want to build townhouses or apartment houses in some city neighborhood–perhaps Cleveland Park, where a lot of editors seem to live–thus increasing the density, overcrowding the streets, and ruining the area's charm, which depends on low densities and big lots (all within walking distance of a Metro station, of course).

These themes are often combined with concern about the "auto culture": People are spending all their time in cars, driving from jobs to schools to soccer fields to stores. The villain in this scenario is a little harder to find. It seems to be "us." We ought to live in areas where all these things are within walking distance, and by God the authorities ought to bring this about!

The "planners" theme is growing more popular: The urban planners have failed, creating whatever condition is being deplored. They have allowed themselves to be influenced and corrupted by the people whose lives they are planning, and as a result they have surrendered the purity of their vision. Planners must stand firm and insist that the populace live as it is told, and they need more power to overcome the forces of greed and private interest. Come the revolution, you will sit in sidewalk cafés drinking latte.

The urban whine is infinitely repeatable. I was recently told that goldfish have such poor memories that every trip around the bowl is a new experience. I do not know about goldfish, but the proposition is clearly true for reporters. They have been writing the same stories for decades now, each time with breathless outrage. Developing a memory might dull the edge. They are also innumerate, so they do no arithmetic on mundane things such as the population densities necessary to support a subway, a large supermarket, or a soccer field. They do not know, or do not mention, that every time a Washington Post editor takes a round trip on a Metro train it costs the public $20 in subsidies.

Nor do these reporters stop to wonder why it is that the conditions they deplore so much–whatever they happen to be at the moment–have worsened steadily as the planning profession has gained increasing power and as private property rights have received decreasing legal protection. Could it be that these events are related? As Bernard Siegan notes in his new book Property and Freedom, the city of San Diego had eight zoning districts in 1952, 16 in 1962, and over 200 in 1993, each with its own rules on land use and development. Yet people are still complaining. It seems unlikely that increasing the number of districts to 400 or making the rules even more complex will improve things.

Given the success of deregulation in other spheres, perhaps more property rights and less planning would produce metropolitan configurations that better satisfy the great variety of human needs and desires. If you are willing to entertain such wild thoughts, if you have taken too many trips around the bowl of urban whine, dip into Siegan's book instead. It is not for the casual reader, but anyone who wants to arm himself with facts for the summer round of suburban deck parties at which everyone bemoans the rise of the suburb will find in Property and Freedom a veritable arsenal.

A professor of law at the University of San Diego, Siegan has written extensively about the role of the courts in protecting the right to own and use property. In his 1980 book, Economic Liberties and the Constitution, he argued that the New Deal retreat from the protection of economic rights was mistaken. Siegan also spent many years as a practicing lawyer, which gives him insight into the realities of zoning boards and the never-ending efforts of property owners to rob each other with the government's help. And he lives in California, which is an education in itself about the dream that government fiats will make the world perfect, if only we add a few more.

Property and Freedom consists of three loosely related parts. The first 75 pages are devoted to two propositions. First, Siegan notes that the right to own and use property is an important human right. One of the oddities of liberal thought in the 20th century is its emphasis on the Constitution as the protector of speech and sex, and its neglect of material protections, despite the fact that for most people most of the time arbitrary government action that deprives them of "the fruit of their labor, savings, energy, and knowledge," in Siegan's phrase, does far more damage than other inhibitions. He finds it strange that liberals who regard legislators as both short-sighted and malevolent when they deal with freedom of speech or the press will, when those same legislators decide to regulate property issues, assume them capable of god-like disinterest and foresight.

The second point in the first section of the book is that the Founders understood the importance of protecting property and devoted serious attention to the topic. The roll call of advocates and quotations is impressive and useful. Even a good libertarian might have an authoritarian fantasy in which legions of ahistorical planners and journalists are chained to the tables in their sidewalk cafés and forced to listen to selections from this part of Property and Freedom.

In the second part of the book, consisting of about 100 pages, Siegan looks at the basic cases on the constitutional prohibition against taking property without compensation and explains what they mean in the context of government regulation. He divides this material into the conventional three periods: pre-1927, when the courts tried to give meaning to the protection; 1927 to 1987, when the Supreme Court left the field to the triumphant urban planners; and post-1987, when the Court re-entered the fray. Unless you are a lawyer with a case, you will find this material dry, and you would have to be pretty mad at those reporters to make them listen to it all.

I disagree with Siegan on some of the legal technicalities. He likes a particular three-part verbal test used by the Supreme Court to determine whether a "taking" has occurred under the Fifth Amendment and thinks it provides a solid foundation for progress. I think it is confusing drivel. Siegan seems to believe that legal thought in this area is making orderly progress. In my view, arguments in a takings cases are not a careful analysis conducted within a logical structure. Instead, the parties toss quotations at each other, as if lobbing mortar shells at an unseen target in the hope that one will hit. Siegan lumps arguments about takings with concepts of due process and equal protection. I think these concepts must be kept separate, not just as a matter of legal craftsmanship but to enhance political analysis.

Despite these quibbles, Siegan has a lot of interesting things to say about this body of law, and I know I will return to the book next time I need to get legal.

The third part of Property and Freedom, about 50 pages long, returns to material of more general interest: the real-world consequences of zoning and land use planning. It is time to chain the reporters back to the tables and resume the readings. Siegan notes the immense costs of local regulations, many of them unnecessary to protect public health or safety, and their impact on families of modest means. He documents the tendency of the wealthy to vote for increasing regulations and the poor to vote against them, an accurate indicator of winners and losers. He notes that zoning keeps expanding on the foundation of its own failures: "[Zoning] usually does not work as represented….Each new strategy is touted as a remedy for the failings of the old, but it too will fail to measure up to the expectations of its proponents."

Siegan examines the experience of Houston, which relies on restrictive covenants enforced by the city rather than zoning. He looks at the California Coastal Commission and other institutions that have sent housing prices in the Golden State soaring. He notes that many environmental laws are designed to secure the personal pleasure of their supporters rather than any real environmental need. He punctures commonly heard arguments that the United States is running out of space and needs to cram its citizens together into ant heaps. He observes the tendency of zoning boards to be captured by the most vocal and their indefatigable efforts to foist costs onto outsiders.

In the end, Siegan is talking about two different philosophies of government. One relies on control by experts, detailed planning, elitist arrogance, and an astonishing disregard of reality. The other relies on respect for individual rights, the amazing ability of markets to produce a rich variety of physical environments, and the genius of an inventive and free people. For too long, the first philosophy has dominated our metropolitan areas. The time has come to stop using its history of failure as the rationale for yet more arrogance and flights into unreality, and to try the second.