M. Davis-Wilson ([info]redhound) wrote,
@ 2008-06-03 15:23:00
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Vote, damn you, vote now!
OK, so for all you Californians, I wanted to articulate that you really, really need to go vote today if you haven't already. We have a really terrible initiative on the ballot today -- Prop. 98 -- and it would be very, very bad for it to pass.

The initiative is being sold as a way to prevent government from pulling Kelo v. New London-style shenanigans, seizing people's homes in order to facilitate private development projects. However, that sort of thing doesn't happen very often, and Prop. 98 goes well beyond that. (Prop. 99 prohibits the taking of owner-occupied property for private use; it's a much narrower response to the Kelo problem.)

Prop. 98 will prohibit rent control. Not just wacky San Francisco and Berkeley rent control, but also mild prevent-massive-housing-volatility rent control like Oakland has. (A lot of people don't realize Oakland has rent control. It doesn't really come up unless you're a landlord.)

Prop. 98 prohibits any regulation of property that is intended to confer economic benefits on private persons if the regulation comes at the property owner's expense. The Legislative Analyst is cautious about what this means, but you can take it to the bank that people will go to court to argue that this means no regulation of condo conversions, no affordable-housing ordinances, pretty much no regulations of real estate that might get in developers' way. It would not surprise me if developers used this proposition to argue that Prop. 98 makes zoning unconstitutional. (Note that this is a constitutional amendment we're messing with here.)

In and of itself, all this might not be problematic to people of certain political persuasions. However, my Grand Unified Theory of Political Meddling comes into play here. The legislative analysis of Prop. 98 suggests that if it passes, governments could pursue affordable housing goals by pursuing their own development projects, or by providing subsidies and incentives for private developers. The problem with this is that, because of Prop. 13, no California government entities have any money. One reason that some California municipalities have stupid development policies and ludicrous ordinances is that citizens demand certain results, and cities can't afford to pursue those goals except by passing ordinances that in many cases get at the real objective only obliquely. If we take away the ability to regulate property, it's not going to stop city and state entities from meddling; it will just encourage them to meddle in increasingly untargeted and potentially destructive ways.

So go vote no on 98 right now! It is a terrible, deceptive, profoundly destructive proposition, and it will wreck our state. I am deadly serious about this. (Voting yes on 99 is less crucial; I would encourage it, though, because I don't really feel like defending Kelo as a matter of policy, and I think if 99 gets more votes than 98 it supersedes it.)



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[info]darkforge
2008-06-03 11:34 pm UTC (link)
I voted for prop 98 by mail weeks ago. (Sorry.)

I'm curious to hear you say more about your Grand Unified Theory of Political Meddling, though. Specifically, it seems like you're suggesting that there's no valid way to pursue a libertarian political agenda.

After all, people will always want to meddle, so constitutional restrictions on meddling will just make them meddle in more oblique and destructive ways.

Doesn't the Bill of Rights fall prey to the GUToPM? The very idea of constitutional government seems threatened.

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[info]redhound
2008-06-04 12:30 am UTC (link)
I don't think a libertarian political agenda should be incorporated into the constitution. I think the way to pursue a libertarian political agenda is to pursue a political agenda, not to set up the constitution so that other agendas are constitutionally impermissible.

More generally, what the GUToPM says to me is that trying to curb government intervention by barring specific government instrumentalities is unlikely to work. If the net appetite for Government Doin' Stuff remains constant, government will find workarounds (see, e.g., deficit spending, the Berkeley Iceland historical landmark shenanigans, etc.), many of which will have unpredictable and weird side effects. The net government intrusion will not be reduced, it will simply be moved around, and stuff will probably break during the move. It's not that I think pursuing a libertarian political agenda is illegitimate, I just think that it's not going to work absent a successful campaign to reduce the demand for government intervention. (I also have to admit that I regard the libertarian tendency to cast libertarian policy preferences as matters of Sacred Fundamental Rights to be libertarianism's least charming quality. But then, I'm the guy who thinks that all property rights are instrumental, so what do I know. I'm not too fond of the "fundamental human right to fresh vegetables" people either.)

I see what you're saying with regard to constitutional government, but I'm not intending to make a majoritarian argument. It is, I think, perfectly reasonable to set limits on what government can do, but I think it behooves us to be honest and explicit about what we're doing, and that's very hard to do when we place constitutional limits on the instrumentalities of government rather than its objectives. I don't really have that much of a problem with the eminent domain part of Prop. 98; it says what it does, fairly straightforwardly. I don't have a huge problem with the rent control part, for the same reason, though I think it's sleazy to bundle it in with eminent domain. It's the open-ended "regulation that transfers an economic benefit" part that I think will wreak all kinds of mischief.

Also, the GUToPM is a prudential principle; the First Amendment has all kinds of messed up side effects*, but we live with them because, generally speaking, we think it's worth it. I think Prop. 98 is not worth it largely because we have Prop. 13, which is already warping government behavior in stupid ways; to the extent that we have an overregulation of property problem, I think it's precisely because regulation has been the best tool in the state toolkit since Prop. 13. If Prop. 98 were standing alone, I would still think it's a crappy proposition propounded by frauds and hucksters**, but I wouldn't be predicting the downfall of civilization.

*To name one, privacy law is totally bizarre because of the contortions lawmakers have gone through to protect privacy interests in ways that satisfy First Amendment review.

**I really don't like the Howard Jarvis Taxpayers Association.

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[info]darkforge
2008-06-04 01:14 am UTC (link)
First off, I think neither of us are happy with the idea that you can make a constitutional amendment with a popular vote alone. 50%+1 is all it takes to change our state's constitution, and that is just crazy. It might be OK if it required a 2/3 or 3/4 supermajority, but certainly not the way it is now.

With that said, I think you're speaking a little fast and loose when you say that a libertarian political agenda shouldn't be incorporated into the constitution, especially without a brighter line about what *should* be incorporated into a constitution.

You seem to suggest that the line might be something like: our constitution should restrict the government's "objectives" but not its "instrumentalities," but aren't the Fourth and Fifth amendments primarily restrictions on the instrumentalities of government and not on its objectives?

FWIW, I don't have a clear bright line for what should get into a constitution either. Clearly a libertarian political agenda shouldn't be incorporated into the constitution based on a flimsy flavor-of-the-week popular vote, but if 90% of the populace agree on a certain plank of the libertarian platform, it's not clear what's wrong with that.

More generally, a lot of libertarians (not just the Sacred Fundamental Rights types, either) think that you can't protect individual rights from majority tyranny without constitutional support. (Of course, that argument is a bit silly when all it takes is a simple majority to amend the constitution!)

Pursuing a libertarian political agenda isn't illegitimate, but I think we have to agree that pursuing a libertarian constitutional agenda isn't illegitimate either... so long as the libertarians have to convince a supermajority first, there's nothing wrong with pursuing that goal.

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[info]redhound
2008-06-04 02:03 am UTC (link)
A few thoughts.

One, the 4th and 5th are not strictly comparable, because the federal government is a government of enumerated powers, and placing limits on its instrumentalities is more in line with its constitutional design.

Two, according to the Supreme Court, the 5th Amendment places no limits on state instrumentalities, it just says that the state has to pay for property it takes (see Midkiff, Kelo).

Three, we're getting hung up on what should go into a constitution in terms of what is legitimate to propose as opposed to in terms of what is a good idea to do. I am mostly arguing in terms of what is a good idea; like I said about the First, sometimes the upside of a constraint on government action is worth the downside. I don't think I would argue that it would be somehow improper for libertarian values to be enshrined in the state constitution, though I suspect I wouldn't vote for it.

What I object to at the base, I think, is backdoor constitutionalism. If libertarians can persuade an appropriate proportion of Californians that the government should have no power to mess with housing markets, that's fine. But we should do that in the open, not by second-order effects. And that, I would say, is a "should" as a matter of legitimacy.

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[info]darkforge
2008-06-04 02:21 am UTC (link)
As I said, I don't like backdoor constitutionalism either. But isn't CA's direct democracy responsible for allowing backdoor constitutionalism? Earlier I said "we both agree this is crazy" but I'm not entirely sure you do agree.

(Re: 5th Amendment, I wasn't referring merely to the "just compensation" clause, which doesn't limit instrumentalities, I was referring more generally to due process, double jeopardy, self-incrimination... these are instrumentality restrictions.)

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[info]redhound
2008-06-04 02:37 am UTC (link)
Responsible...I don't know. I think the initiative system makes it easier to do shady stuff, but you could enact problematic amendments without initiatives. I wish there were some muscle to the single-subject rule.

I'm not fond of simple-majority constitutional amendment -- or, at any rate, I think the petition threshold is too low in an age of low voter turnout. I'm not sure I'd call it crazy, but ill-advised seems fair.

I'm not sure that I would call due process et al. instrumentality restrictions. I see the distinction as "what government may do" contrasted with "how may government do it". I suppose you could argue that double jeopardy is a method of pursuing justice, but that's a higher level of generality than I had in mind.

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