High court OKs personal property seizures
DavidEBernstein at aol.com
DavidEBernstein at aol.com
Fri Jun 24 08:44:55 PDT 2005
Blaisdell was, in my view, clearly wrong given the arguments made by the
majority. Query whether Blaisdell could be justified (a) under some sort of
emergency police power; or (b) better yet, as a temporary measure meant to restore
integrity to the underlying contract, which, because of macroeconomic
circumstances beyond the control or expectations of either party to the contract
(massive deflation), the value of the underlying contract had shifted in ways
likely to be corrected over time, leading to the contract being paid off (the
"obligation" of the contract, ultimately, being fulfilled in a very meaningful
sense). Either argument would have been far better than the Court's actual
As for Gillman, much as I respect his work, I think he's wrong about what was
at the heart of Lochnerism, as I've explained in detail in Lochner Era
Revisionism, Revised: Lochner and the Origins of Fundamental Rights
Constitutionalism, 82 Geo. L.J. 1 (2003). Concerns about "neutrality" and class legislation
(but not redistribution, as such), were at the heart of cases involving the
property aspect of the due process clause (Smyth v. Ames line of cass), and
certain tax cases (involving arbitrary burdens on certain classes of taxpayers),
but were not at the heart of the Lochner line of cases. See, e.g., Meyer v.
Nebraska, Pierce v. Society of Sisters, Fisk v. Kansas, Farrington v.
Tokushige, and Stromberg v. California, all of which are in the Lochner line of
"liberty" due process cases, and none of which rely in any way on class legislation
in general, or redistribution in particular.
In a message dated 6/24/2005 11:04:27 AM Eastern Standard Time,
SLevinson at law.utexas.edu writes:
I agree with Sandy that tax abatements for specific businesses are - at
least in most cases - bad policy, but not unconstitutional. But, as I
argue in my last post, the constitutional rules that apply to tax and
spending policies are different from those that apply to takings. If taxes
are the same as takings, then would Sandy (following Richard Epstein, who
is the best known advocate of the taxes=takings theory) argue that the
IRS is obliged to provide "just compensation" to taxpayers?
Since I'm not a libertarian, I don't agree with Richard. But I don't believe
that his arguments are at all silly. Indeed, I think he is essentially
correct--and I think that Bruce Ackerman would agree--in the fundamental point that
there was a basic transformation in the 20th century, usually summarized
under the notion of the "New Deal Revolution" that legtitimized the redistributive
welfare state as against the older understanding that made most
redistributions that could not plausibly be presented as serving a "public purpose"
illegitimate. (I take it that this is the heart of Lochner, especially as described
in Howard Gillman's splendid book that did so much to restore the "integrity,"
as it were, of the Lochner approach to understanding the world. Ironically,
the most important critique of this understanding involves the legal history
of, say, Mort Horwitz (cited by Clarence Thomas!), in demonstrating that the
state has always been more than happy to use its coercive powers to aid in what
it deemed desirable economic development. And there is no reason to believe
that the 14th Amendment was intended to put the kibosh on such use of state
power, even if one might be able to defend the proposition that it did defend a
desire for more judicial monitoring to prevent truly "arbitrary" uses. (See,
e.g., Cardozo's unpublished concurrence in Blaisdell, published in Brest et
al.) I'm curious whether those who rail against yesterday's decision also
believe that Blaisdell was wrongly decided. (For the record, I annually teach
Blaisdell by saying that it is the strongest set of opinions in our entire history,
that Hughes's brilliant doctrinal-prudentialist opinion is followed by an
equally brilliant textual-historical opinion by Sutherland (with Cardozo's
unpublished concurrence as a yet different approach), so I don't hold it against
anyone who says that Blaisdell was wrongly decided.
Professor David E. Bernstein
George Mason University
School of Law
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