Reviewed by Michael C. Evans, Department of Government and Politics, University of Maryland, College Park. Email: mevans [at] gvpt.umd.edu.
To say that Gregory Alexander’s GLOBAL DEBATE OVER CONSTITUTIONAL PROPERTY: LESSONS FOR AMERICAN TAKINGS JURISPRUDENCE is an important and interesting work would be a gross understatement. The questions of whether (and how) to grant constitutional status to the right to property, and how courts ought to interpret such provisions, raise core issues in contemporary constitutionalism and political economic development, including the nature and institutional requirements of socioeconomic justice and the proper relationship between citizen autonomy and the state in a liberal democratic constitutional order. Alexander addresses these questions deftly through an interpretive-comparative study of the constitutional property regimes of three countries – the United States, Germany, and South Africa – interlaced with limited but pointed comparisons with those of other states, including Canada, India, Singapore, and the UK. There is a lot packed into this relatively short book, and its flow, clarity, and consistency can at times suffer on account of that fact. However, the breadth and depth of coverage and analysis, combined with its thoughtful and provocative arguments, render this book a highly stimulating and informative read. Two sets of scholars in particular can benefit from this book. First, those (like me) who are most familiar with the US experience may enjoy ruminating over the case made for how American Takings jurisprudence could be improved through doctrinal borrowing. They may also be interested to learn about how the US constitutional property regime is widely (mis)perceived around the world, and the impact these perceptions have had on the global debate over constitutional property. Second, those non-US-case-experts who have a particular interest or stake in the global debate may benefit from Alexander’s empirically-grounded critique of the extant debate as well as his judicious account of the real nature of the contemporary US constitutional property regime. Additionally, this book could be useful stimulus for discussing a variety of topics in upper-level undergraduate or graduate courses, including (but certainly not limited to) comparative constitutional property law; theories of distributive justice; the nature and institutional requisites of political economic development; the nature and determinants of judicial decision making; conflicts between individual rights and the public interest in liberal democratic theory and practice; theories of institutional and constitutional design; and theories of constitutional interpretation, especially with regards to the practice of constitutional borrowing. In short, whether for the above [*885] suggested purposes or simply a good read, I highly recommend this book.
At the heart of the book is the comparative study of the constitutional property regimes of the United States, Germany, and South Africa, with each receiving in-depth treatment in Chapters 2, 3, and 4, respectively. These chapters are of stand-alone value to anyone interested in the constitutional property law of those countries. However, these middle chapters also serve as evidential cases for supporting two major arguments advanced in the book and considered at length in the first and last chapters. The first chapter speaks to the normative question of “Should a country adopt a constitutional property clause?” by advancing a positive thesis about the impact such clauses actually have on the nature of constitutional property regimes. The chapter offers an interesting overview of the debate, making clear why constitutional property is such a hotly contested issue, but then argues that the debate has suffered on account of insufficient understanding by all sides of the real forces driving how property regimes actually operate. The last chapter (Chapter 5) suggests how American takings jurisprudence could improve through doctrinal borrowing. Rather than cover each chapter sequentially, this review is organized thematically, with two sections focused on the two major theses advanced in Chapters 1 and 5. In the process, however, I will cover those aspects of Chapters 2, 3, and 4 that I think will be particular interesting to political scientists.
In the first chapter, Alexander offers a forceful critique of the extant debate over whether constitution makers ought to include a clause that guarantees an individual right to property ownership. Although, throughout the book, he clearly rejects the neoliberal / libertarian vision of the ideal property regime (advanced most famously by Richard Epstein) and embraces the property-affirming yet progressive aspects of the German and South African constitutions, he does not in this chapter directly address the question of what a good constitutional property regime would consist. Instead he offers a blanket criticism of the debate itself, arguing that it is misguided by the mistaken assumption that formal constitutional property clauses alone make a substantial difference to the nature and degree of a polity’s actual protection of property rights. He rejects not only the strong claim that “constitutional recognition is . . . a necessary . . . or a sufficient condition for a legal regime of robust property rights” (p.20), but also the slightly weaker claims that constitutional property provisions either increase the likelihood of achieving such a regime or that they are necessary for achieving one that is “fully functional” (pp.24-25). As he demonstrates, this assumption, which he calls the “formalist trap,” is implicitly held by all major participants in the debate. Indeed, he thinks the formalist trap has ensnared strong democrats and/or egalitarians (e.g. Michael Chaskalson, Ran Hirschl, and Jennifer Nedelsky) who oppose the inclusion of property clauses on the grounds that they impede democratic self-determination on important public issues, especially those pertaining to market regulation and distributive justice; neo-Harringtonian civic republicans (e.g. Cass Sunstein) who support them based on the belief that [*886] they contribute to the economic security and independence necessary for democratic citizenship; and those public choice / neoliberal economists (e.g. Gary Becker, James Buchanan, and Douglass North) and international financial organizations (e.g. World Bank and IMF) who view constitutional property provisions as “precommitment devices” for protecting legitimate property rights and/or efficient markets from the arbitrary factional whims (read “redistributive tendencies”) of majoritarian democratic governance (pp.24-39). The reality, Alexander argues, is that constitutional property clauses per se are “distributively indeterminate” (p.39).
While it is true that some countries with constitutional property guarantees have had strong traditions of property rights protection (e.g., the US) and exhibited strong anti-redistributive and anti-regulative tendencies (e.g., the US during the LOCHNER era and India from 1950 - 1978), and it is also true that examples abound of regimes without such constitutional provisions that have been virtually unfettered in their expropriation of property for redistributive or other purposes (e.g., India after 1978 and non-constitutional authoritarian and communist regimes), the formalist assumption does not hold-up in light of several counterexamples. That is, it cannot explain the high level of property rights protection (and thriving market economies) in certain countries without constitutional property clauses (e.g., Canada, UK, New Zealand, and Singapore) and the highly progressive character of some regimes that do have such clauses (e.g., Germany and South Africa.) Alexander stops short of saying text is irrelevant, but he does assert that “the mere presence of a clause guarding against uncompensated ‘expropriations’ . . . of ‘property’ does not commit that country to a policy against governmental redistribution of wealth” (p.39). The key, instead, is whether and how judges decide to interpret such clauses (pp.57-62).
The critical question, therefore, is this: What influences judicial interpretation of constitutional property clauses? Alexander emphasizes the “nonconstitutional context [of a country], particularly its background political and legal traditions and culture” (p.60). Although he deemphasizes the importance of constitutional text, below I will explain why I think he does not fully consider the extent to which his evidence and argument point to its relevance (properly understood.) But first it is important to consider what is certainly one of the most valuable contributions of this study, which is his identification of three aspects of a country’s nonconstitutional political-legal context that are important in influencing the actual functioning of its property regime: its private law system, its historical political ideologies, and its dominant social beliefs about the operation of ordinary democratic politics. Let us consider each in turn.
The first factor, a country’s private law system, plays a role in judicial decision making, Alexander argues, regardless of what the constitution formally mandates. As Chapter 4 makes clear, this factor is most obviously important in the case of South Africa. There, as he convincingly demonstrates, the success or failure of the constitution’s socially “transformative” aspirations (and, thus, its ability to authorize extensive [*887] regulation and redistribution of property in order to overcome the socioeconomic remnants of its Apartheid past) hinges greatly on “which of two discursive frameworks . . . prevails as the dominant discourse in all aspects of the South African legal system[:] . . . that of traditional South African private law, particularly its historic Roman-Dutch common law, [or the] constitution’s discourse, … which elevates social transformation and social justice over all other values” (pp.150-151).
Although Chapter 2, Section 39 of the constitution mandates that, in developing the common law, courts “must promote the spirit, purport and objects of the Bill of Rights” (including its positive socioeconomic rights that entail limits, and place demands, on how owners use their property), it is far from settled whether the judiciary will do so. Proponents of the traditional South African private law method (see pp.182-184 for a helpful summary of this method) argue that it must resist “colonization” by constitutional law (i.e., effectively ignore Chapter 2, Section 39) in order to perform its essential function of providing “flexibility and adaptability” in doctrinal development pertaining to the “private sphere.” Opponents counter that its predictable consequence is to undermine the protections and guarantees deliberately built into the constitution in order to address persisting gross inequities. Regardless of which side has the most convincing argument, it is clear that if the views of private law traditionalists were to prevail, the South African property regime would be affected little by the constitution’s property clause (or its socioeconomic protections and positive rights) since the courts would consider the common law (interpreted through an abstract, formalistic, and conceptualistic method), rather than the constitution and its values, to be the relevant basis of decision. This, in fact, has occurred in some lower courts (pp.182-188).
Alexander seems to mean two things by “historical political ideologies,” the second aspect of a country’s nonconstitutional political-legal background that he points to as influencing judicial treatment of constitutional property rights. At times he refers narrowly to the continued influence (through a “negative valence”) of National Socialism in Germany and the racist ideology underlying the repudiated Apartheid system in South Africa. He argues convincingly that the constitutional jurisprudence in those societies continues to be influenced by the shadow of their Nazi or Apartheid pasts. Indeed, as he observes, the “constitutions of both countries are explicit negations of those ideologies . . . . [and, thus] every term in those constitutions has to be interpreted in light of those negations” (p.60). This is most apparent in the case of South Africa, where its constitution’s preamble begins by stating “We, the people of South Africa, / Recognize the injustices of our past” and goes on to explicitly declare that the regime is founded to “[h]eal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights” (p.152). With such explicit language running throughout the South African constitution, it is not surprising that constitutional jurisprudence in that country has been largely influenced by the negative valence of its Apartheid past. [*888]
However, Alexander’s treatment of the impact of political ideology in Germany (Chapter 3) is notably different. In his very interesting account of the ideological origins of Germany’s approach to constitutional property, he barely mentions the role played by the post-war German repudiation of National Socialism. A definitive feature of Germany’s approach to constitutional property is its concomitant Basic Law Article 14 guarantee of private ownership and inheritance, on the one hand, and Article 14(2) social-obligation clause (“Property entails obligations. Its use shall also serve the public good.”), on the other. As he demonstrates, this is one example of how Germany has constitutionized the tension between Rechtsstaat, which protects negative individual rights and liberties, and Sozialstaat, which is committed to meeting the basic needs of all citizens. Importantly, this tension has its roots “not in constitutional law, formally understood, but in the country’s background legal and political traditions prior to the era of National Socialism” (p.98, emphasis added). In particular, he argues that the Sozialstaat ideal could be traced back to the Lutheran notion of mutual obligation between ruler and ruled (pp.105-106) and that the Basic Law’s distinctive approach to reconciling Sozialstaat with Rechtsstaat was highly influenced by the “ordoliberal” ideas developed in the immediate post-war years by the so-called Freiberg School. While the ordoliberals, like anyone reflecting on the human condition after World War II, were certainly informed by the lessons of the National Socialist experience, their ideas appear to have been more fundamentally the product of their attempt to synthesize classical liberalism, socialism, and Christian ethics (pp.107-110). It seems, therefore, that Alexander also has a broader meaning in mind when he speaks of the influence of “historical political ideologies” on constitution making and judicial interpretation. This important insight can perhaps be better formulated in more general terms: prevailing ideologies, regardless of their origin, exert a profound influence on how a regime will construct constitutional meaning. Of course, that is still consistent with the observation that, in the particular cases of Germany and (especially) South Africa, the influential prevailing ideologies have themselves been influenced by the structural remnants, and each society’s memory and ongoing repudiation, of National Socialism and Apartheid respectively.
The third and final non-textual political-legal factor identified as influencing the actual workings of a constitutional property regime is a society’s dominant beliefs about the operation of ordinary democratic politics. As Alexander points-out, liberal democracies vary greatly with respect to their traditional (mainstream) beliefs about the nature of normal political processes. This is important, he contends, because different prevailing beliefs on this core issue tend to produce both different constitutional texts and different characteristic manners of interpreting those texts. Indeed, he goes so far as to claim that the “best way to understand a democratic country’s interpretation of its constitutional property clause is as an expression of its dominant outlook on the functioning of ordinary political processes” (p.61). He argues, in particular, that the characteristically American “Madisonian anxiety” over factional capture of the [*889] democratic process is an important source of difference between the US property regime and that of Germany and South Africa.
Alexander’s analysis and critique of the “formalist trap” should be a wake-up call to anyone harboring the illusion that a constitutional property clause per se will materially affect the nature of a society’s property regime. However, the book does not point to clear practical conclusions for constitutional designers. I will discuss this further below, but first we should consider the other major argument advanced in this book.
As the subtitle indicates, the other major purpose of this study, and the focus of Chapter 5, is to draw upon the experiences of other liberal democracies (particularly Germany and South Africa) in order to derive lessons for American takings jurisprudence. As background for considering these lessons, it is important to overview several pertinent findings/conclusions from the comparative analysis in Chapters 2-4:
(1) The constitutions of the US, Germany, and South Africa each offer protection from expropriation of property. However, these protections are far from absolute: they allow the state to take property on the condition that it is done for the benefit/use of the public and that the owner is appropriately compensated.
(2) They all recognize, either implicitly or explicitly, what Alexander calls the “social obligation of ownership.” As mentioned above, Germany’s Basic Law Article 14(2) explicitly states that “Property entails obligations. Its use shall also serve the public good.” Although the South African constitutional text does not include an explicit social obligation clause akin to Basic Law 14(2), a norm to that effect is strongly implied throughout, especially by the positive socioeconomic rights guaranteed in Chapter 2, Sections 26-29. As for the US, while its constitutional text lacks a strong explicit or implicit recognition of such a norm, Alexander argues at length in Chapters 2 and 5 that its case law implicitly does so. In fact, he argues that US constitutional property law “is not as far out of alignment with [i.e. is not significantly more libertarian than] its counterparts in other liberal democracies, including Germany and South Africa, as is commonly assumed” (p.64). However, as we shall see, he thinks its case law would be improved considerably by making its social obligation norm more explicit in its case law.
(3) None of the three countries’ constitutions provides guidance on (and, thus, they all leave to the courts to sort out) the fundamental problem of distinguishing between non-compensable regulations of property and compensable de facto expropriations (known as “regulatory takings” in the US case.)
(4) The US Supreme Court stands-out among liberal democratic constitutional courts for not using a “proportionality” principle in its individual rights decisions. For property rights cases, the proportionality approach is used extensively not only in Germany and South Africa, but also in countries such as Canada and Australia that lack property rights clauses in their constitutions/charters of rights. [*890]
(5) In the constitutions of many modern democracies, including those of Germany and South Africa, but not that of the US, “human dignity has been formally enshrined as the foundational substantive value by which the courts are to develop all other constitutional interests, including property” (p.16).
(6) In their decisions, both the German and South African constitutional courts, in contradistinction to the US Supreme Court, “explicitly identify the central purposes of property as a constitutional right and develop their constitutional property jurisprudence around this settled understanding” (pp.246-247). By implication, he argues that courts necessarily base their constitutional property decisions on normative principles, and the only real question is whether they do so transparently: “Where courts openly discuss and debate the central purpose (or purposes) that property serves as a constitutional right within the particular constitutional regime and in the particular context of the case, they are much more apt to reveal the real normative bases for their decisions” (p.247). Moreoever, when they do this “clarity and principled reasoning are enhanced” and, as a consequence, “[c]onstitutional property law is more likely to be viewed as principled and coherent” (ibid).
(7) Compensation practices in the US differ from those in both Germany and South Africa in two ways. First, the US does not allow “equalization benefits” to be used to prevent otherwise desirable regulations from being declared unconstitutional takings. Second, the US never considers payment below (or above) “fair market value” to be enough (or required) for “just compensation.”
(8) Although Alexander persuasively argues against the widely held view that a successful libertarian/conservative “revolution” in US takings jurisprudence has occurred in the last twenty years, he does assert that that jurisprudence is significantly “muddled” and thus in need of repair. In its current state, especially in comparison to other liberal democratic constitutional property regimes, it is analytically incoherent, opaque in its purposive reasoning, lacks “an expressly recognized and well-developed norm of the social obligation of ownership” (p.199), and consequently engenders unwarranted legal and normative confusion.
Based on his comparative analysis, Alexander makes four recommendations for doctrinal innovations to improve American takings jurisprudence: developing and applying a proportionality doctrine, adopting a purposive mode of judicial analysis, developing an explicit social obligation norm of ownership, and appropriating the compensation practices of “equalization benefits” and “proportional compensation.” Here I briefly summarize each recommendation.
As stated above, the constitutional courts of most liberal democracies outside the US use a proportionality principle to decide property rights cases. The proportionality principle, as applied in those countries, is the second part of a two-step test. The first step is to ask whether a statute in fact violates a constitutional (or entrenched) right. If it does, then a statute is ruled proportional and thus legitimate if it meets three conditions: (1) the means are rationally connected to achievement of a legitimate [*891] state objective; (2) the means impair the affected right as little as possible; and (3) the legislative measure is generally proportional to the ends to be achieved. The major difference between this method and the American practice of “balancing” is that with this three-pronged method “the balancing of benefits and burdens comes, if at all, only at the end of the inquiry [i.e. step 3], after the court has analyzed the purpose of the restriction and the restriction’s necessity” (p.203), whereas balancing does not involve that preliminary analysis. Moreover, whereas balancing generally takes the form of abstract, de-contextualized cost-benefit analysis, with “a pretense of scientific rigor that make the outcome appear objective” (p.204), proportionality analysis is distinct for its “contextuality, transparency of the relevant factors and reasons, breadth in the competing consideration, and overt normativity” (p.202).
In general, Alexander sees proportionality as presenting a middle course between balancing, which in practice “translates into ‘the government always wins,’” and the categorical or strict scrutiny approach, favored by libertarian property rights scholars and activists, that “in the takings context would equal ‘the owner always wins’” (p.212). Currently, takings jurisprudence relies mostly upon the former, but the intermittent use of the latter as a remedy for the perceived injustices of the former has reduced predictability in the law (p.206.) However, Alexander thinks predictability, as well as justice, can be enhanced if the proportionality approach is adopted. This move, however, while necessary, is in itself insufficient and possibly counter-productive. He thinks the Court not only must adopt it, but also must do so in a way that incorporates his other three doctrinal innovations. Otherwise, it could slip into a categorical approach and thus, from his point of view, become a cure (for balancing) that is worse than the disease (pp.207-208).
His second doctrinal innovation would lend clarity to takings jurisprudence while preventing it from slipping into a categorical approach by inviting the Court to engage in a purposive form of decision making. The purposive approach requires that courts “analyze takings cases by explicitly focusing on the core purpose of constitutional protection of property, identifying the central constitutional value that such heightened protection is intended to serve, and asking whether that value is immediately at stake under the circumstances before it” (p.215). Importantly, Alexander does not claim that there will be consensus on the purpose(s) of constitutional property. He simply argues that constitutional decisions will create less confusion if the “real normative underpinnings of opposing views” are made overt through explicit purposive reasoning (p.217). As an example, he points to the 1994 DOLAN case, in which the Court reviewed a city’s attempt to exact a public dedication for a pedestrian and bicycle pathway and flood-control greenway from a store owner in exchange for a permit to expand her store and parking lot. The Court declared the exaction an uncompensated taking, and thus unconstitutional under the Fifth Amendment. Alexander argues that under proportionality analysis conducted with purposive reasoning, the regulation would have been deemed [*892] legitimate, especially if the Court operated from the purposive theory of property that predominates in German constitutionalism. This theory holds that property claims should be hierarchically ordered according to their role in promoting human dignity, understood as “development of the human personality [that most properly] occurs within the social community” (p.221). Alexander argues that by this mode of analysis, the Court would have ranked the importance of protecting Dolan’s purely commercial economic property interest lower than other forms of property (e.g. housing) that more directly impact an owner’s “personal security or autonomy” (p.209). Alexander offers an interesting survey of other contending theories of property’s purpose(s), including negative individual liberty, economic efficiency / wealth maximization, welfare (objectively defined), and the civic-republican concern with “the creation and maintenance of . . . a social order based upon the ideals of self-governance and civic participation” (pp.219-223). Of these, he endorses the dignitarian, welfarist, and self-governance theories as needed correctives to the overemphasis upon negative liberty and economic efficiency / wealth maximization in the US context.
Alexander’s third proposed doctrinal innovation is an extension of the second. He argues that US takings decisions would improve markedly if, as the end product of purposive analyses, the Court would articulate an explicit conception of the nature of the social obligation that inheres in property ownership. His argument is premised on a rejection of the common claim “that in the American liberal tradition, constitutional protection of property is all about the individual owner’s freedom from the coercive power of the collective and that conceptions of ownership as imposing obligations on individuals . . . are squarely at odds with the most fundamental premises of our system” (p.234). To the contrary, he argues, citing Frank Michelman, that “the idea of social obligation undergirds the culture of American constitutional protection of property at its most fundamental level” (p.223). This is clearest in the case of the noxious-use doctrine, which holds that compensation is not owed for regulations intended to halt a noxious use of property (p.225). Even Justice Scalia’s revision of this doctrine, the “nuisance exception” to a categorical rule that he articulated in LUCAS (1992), acknowledges a(n) (albeit “truncated”) social-obligation norm (pp.225-228).
The real debate is about the scope of the social obligation norm, and here Alexander thinks takings decisions would improve both expressively (by publicly affirming the importance of social responsibility) and substantively (by enhancing transparency and clarity) if the Court would explicitly define its scope (pp.223-225; 234-235). There are two major contenders for how its scope ought to be defined (228-233). The minimalist (i.e. libertarian) view envisions only the negative obligation to not harm others’ property and a positive obligation limited to contributing to the provision of “public goods” (pp.228-229). The second view allows for a more robust account of positive obligations, including (but not limited to) “the redistribution of wealth done for the sake of equality of welfare” (p.228). His preference is clearly for a version of the latter approach that focuses “not on a [*893] non-owner’s [positive] right to receive” but rather on the owner’s “continuing duty to give (or at least be prepared to give, if and when the duty is activated) to the society that made their ownership possible in the first place” (p.231). However, he also argues that it is more important that the Court explicitly develop one version or the other rather than continue its current normatively “opaque” approach that does nothing but create legal and normative confusion (p.235).
Finally, Alexander recommends two improvements to US compensation practices in takings law. In his judgment, current practices exacerbate rather than alleviate the tensions between efficiency/public need and fairness that arise in many regulatory scenarios. Too often either efficient but unfair regulations are declared non-takings, thus allowing burdens to fall disproportionately on an individual or small group of owners in the community without any form of compensation, or desirable regulations are declared de facto takings and thus made prohibitively costly as a consequence of the burden placed on the public to provide “just compensation” to owners. His first proposed reform, “equalization benefits” (EBs), are widely used in Germany. EBs are (typically non-monetary) benefits that are “designed to mitigate the harmful effects of a regulation on an individual owner” and, in the process, “prevent an otherwise desirable regulation from constitutional invalidity for violating the proportionality requirement” (p.236). An example of an EB is the construction of a noise-reducing wall to ease the burden placed on homeowners by a nearby public highway project. Alexander sees this practice, which he argues was implicitly endorsed by Justice Brennan in the landmark 1978 PENN CENTRAL decision, as a flexible alternative to the current “all or nothing” US approach.
His second proposed compensation reform addresses the problem of prohibitive costliness by borrowing the German and South African practice of allowing payments less than “fair market value” to be considered “just compensation” under certain conditions. Here, he holds the German “equitable balance” standard up as a useful model. By this approach, compensation is based on weighing, on one hand, the degree of impact of a regulation on an individual’s property right in light of the fundamental purpose of that right and, on the other hand, the extent of the public interest involved in the regulation (p.240). According to Alexander, in practice this approach results in awarding individuals fair market value in “the vast majority of cases” (p.240). However, the approach is flexible enough to admit lower levels of compensation, especially in cases where “the public interest involved in the expropriation is very great and, because of the nature of the affected item of property, the expropriation did not substantially jeopardize the fundamental purpose of the constitutional property right” (p.240). It is important to note that Alexander thinks the purposive mode of analysis is indispensable in determining what just compensation requires: “The meaning of ‘just’ . . . depends upon the strength of the affected constitutional property interest and that, in turn, depends on precisely the type of purposive calculus that proportionality analysis invites” (p.242). [*894]
Although I learned a lot from this book, it has its share of shortcomings. One problem is that at times Alexander is inconsistent or even contradictory. In his introduction, for example, equal weight is given to “background legal and political traditions and culture” and “institutional context” as factors influencing judicial interpretations of constitutional text (pp.17-20), but only the first is emphasized (or even explicitly mentioned) in later chapters. Similarly, in the introduction we are told that the “formalist insistence on constitutional recognition of property rights by proponents of the neoliberal agenda is a red herring” due to the empirical thesis, defended in the book, that “constitutional recognition is neither a necessary nor a sufficient condition for a legal regime of robust property rights” (pp.20-21). However, four pages later in Chapter 1 Alexander states that “no one, at least as far as I am aware, asserts that constitutional status is either a necessary or a sufficient condition for stable and secure legal property rights” (p.24). What’s more, in the first chapter he contends that a suspicion of legislative and regulatory enactments born out of “Madisonian anxiety” (i.e. fear of factional corruption of democratic processes) has led Americans to support strong reliance on judicial review as a protector of property rights from democratic abuse, whereas Germans and South Africans, out of greater democratic trust, have developed property regimes based on much greater deference to their legislative and regulatory systems (pp.60-62). As mentioned above, this is in fact held-up as one of the most important cultural factors influencing variation (across regimes) in the impact of judicial interpretation in the construction of property regimes (ibid). However, Chapters 2 and 5 emphasize that this tendency in American political-legal culture has not been present in takings jurisprudence: “Courts, especially the Supreme Court, have tended to display a more deferential attitude toward legislative decision making where property rights are concerned” (p.217).
Another problem is that the book occasionally blurs normative and empirical arguments and assertions. For example, twice Alexander asserts that the analysis of the formalist trap leads to the conclusion that constitutional designers should take into account contextual factors when deciding whether (or how) to include property provisions in a constitutional text (p.62; pp.245-246). But this really is not a compelling implication of the analysis. It is one thing to say that, as a factual matter, the actual impact of any set of property provisions is determined in part by contextual factors that have nothing to do with the constitutional text itself. That proposition is well defended in the book. But it is something else entirely to say that this entails constitutional co-authors should somehow tailor constitutional provisions in light of those factors. Indeed, especially since it is argued throughout the book that text can make a difference – either as a catalyst for legal cultural change or by making certain interpretations easier or harder than others in the event that judges choose to justify their property decisions on constitutional textual grounds – the thrust of the argument seems to lead to the opposite conclusion: a constitutional co-author has a dominant strategy to promote the adoption of constitutional language most conducive to [*895] interpretations supportive of her vision of a good property regime, regardless of how likely she thinks it is that such interpretations are to be forthcoming. So, for example, nothing in the book’s argument (as I understand it) leads one to believe that there are any conceivable circumstances in which the libertarian constitutional co-author should not try to exclude, or the social democrat should not try to include, (1) language that establishes a social obligation inherent in ownership or (2) socioeconomic protections and positive rights. One can imagine arguments supporting such conclusions, but none are offered in this book.
A similar problem arises in the course of discussing the debate over borrowing. Here, Alexander makes a connection between the role of “tradition” in his analysis, on the one hand, and Justice Scalia’s rationale for rejecting borrowing, on the other:
Among the problems with attempts to borrow legal practices, especially constitutional practices, from other countries is one of the very factors that I emphasize in this book: the central importance of a nation’s background legal and political culture and traditions to the meaning of the provisions of its constitution. . . . The importance of background legal and political traditions and culture is one reason Justice Scalia has given for resisting the idea of constitutional borrowing. (p.10)
The problem with this is that it conflates two very different reasons why background legal and political culture and traditions matter to the debate over constitutional borrowing. The first is Scalia’s normative particularist argument that the US Supreme Court should not borrow because the US should adhere to its own text and traditions (see e.g. Jacobsohn 2004.) The second is Alexander’s pragmatic-empirical argument, which is that borrowing might not work as intended because background cultures and traditions have a significant impact on whether and how provisions and rulings will be interpreted and implemented. Clearly, the two uses of “tradition” are not equivalent.
A final criticism I will make is that, despite its repeated attacks on various manifestations of “formalism” and declared commitment to “realism,” the book has little to say about the role of broader constitutional institutions and structures in influencing (1) the likelihood that judges sympathetic to a particular jurisprudential method or property rights vision will come to sit on the bench, (2) the impact their pronouncements will actually have, or (3) the propensity for normal democratic politics to result in redistributive policies. This is unfortunate since these could be relevant considerations for the constitutional designer or anyone sympathetic to Alexander’s vision for reforming American constitutional property jurisprudence.
As an example of the first consideration, a constitutional designer might want to take into account the likely consequences of alternative rules governing judicial selection on the political composition of both higher and lower level courts. Was there anything progressive constitutional co-authors could have done in South Africa, for example, to increase the likelihood that lower courts would be staffed with judges committed to affirming the [*896] subordination of common law to the Constitution?
As for the second consideration, the actual working of a property regime will necessarily be as much (if not more) a matter of execution as it is one of high court pronouncements. This study comprehends well Alexander Hamilton’s oft repeated insight that “[l]aws are a dead letter, without courts to expound and define their true meaning and operation” (1787). However, it has nothing to say about the proposition he advanced fourteen years later that without “a faithful and efficient organ for carrying [them] into execution[,] the laws [will] . . . be a dead letter” (1801). This means not only that constitutional designers should carefully consider how they decide to constitute executive power, but also that we should be skeptical about the likely efficacy of a reform proposal directed merely at the interpretive practices of the judiciary. One need look no further than Rosenberg (1991) to understand the insufficiency of judicial pronouncements to determining the real state of “law” in the US case. In order for judicial opinions to be anything other than a dead letter, they must either inspire voluntary compliance or be backed by the will to enforce by executives in the relevant jurisdictions. Here, the hegemony of mainstream public (as opposed to elite-judicial) opinion looms large in determining not only the propensity for voluntary compliance, but also the likelihood that (popularly elected and accountable) executives will be willing to enforce. Consequently, a progressive improvement to American takings law may well require tending as much, if not more, to mainstream public opinion as it does to the practices of the judiciary. As one institutionally-minded constitutional theorist has suggested,
The problem with these endless efforts to refine the jurisprudential and philosophical case for social democracy, other progressive policies, or any other political cause, may be that such scholarship reaches the point of diminished political and practical returns long before reaching the point of diminished intellectual returns (Graber 2001, at 1976).
Finally, the third consideration – the impact of constitutional institutions on the propensity for ordinary politics to result in redistribution – is perhaps the most important omission of this study. Particularly relevant here is the well-established finding in the comparative political economy literature that proportional representation systems are more likely to enact redistributive policies than are simple majoritarian winner-take-all systems (see e.g., Iversen and Soskice 2006). This means that the electoral rules established in constitutional texts may have a much greater causal impact on levels of redistribution than the presence or absence of constitutional property provisions, regardless of how they are stated or interpreted. If the formalist trap means overemphasizing the efficacy of parchment barriers, then this book may have avoided that trap only to become ensnared by its close cousin: legal constitutionalism’s myopic focus on courts and judges and under-emphasis of the impact of broader constitutional structures in influencing the actual nature of rights protection, and public policy more broadly, in a political regime. [*897]
Despite these limitations, I must reiterate my admiration for this book. Alexander demonstrates remarkable skill as a comparative constitutional law scholar, and points the way to a more fruitful debate over constitutional property.
Graber, Mark. 2001. “Social Democracy and Constitutional Theory: An Institutional Perspective.” 69 FORDHAM LAW REVIEW 1969-1987.
Hamilton, Alexander. 1787. FEDERALIST #22.
Hamilton, Alexander. 1801. “Examination of President Jefferson’s Message to Congress of December 7, 1801 (#5).” December 29, 1801.
Iversen, Torben, and David Soskice. 2006. “Electoral Institutions and the Politics of Coalitions: Why Some Democracies Redistribute More Than Others.” 100 AMERICAN POLITICAL SCIENCE REVIEW 165-181.
Jacobsohn, Gary Jeffrey. 2004. “The Permeability of Constitutional Borders.” 82 TEXAS LAW REVIEW 1763-1768.
Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago.
DOLAN v. CITY OF TIGARD, 512 U.S. 374 (1994).
LOCHNER v. NEW YORK, 198 U.S. 45 (1905).
LUCAS v. SOUTH CAROLINA COAST COUNCIL, 505 U.S. 1003 (1992).
PENN CENTRAL TRANSPORT CO. v. NEW YORK, 438 U.S. 104 (1978).
© Copyright 2008 by the author, Michael C. Evans.