Property and Freedom: The Constitution, the Courts, and Land-Use Regulation. - book reviews

Reason, August-Sept, 1998 by James V. DeLong

by Bernard H. Siegen, 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 town-houses 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 cafes 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.