Missed Opportunities For Culture War

Isn’t the problem here that right-libertarians are really just conservatives – and you can’t get much closer to conservative heartfelt (rather than logical) values than the right to stop someone from building a tannery overlooking your garden?

While most anti-government contrarianism is in line with heartfelt conservative values (‘people who AREN’T LIKE ME are benefiting and I’M NOT’), Epstein’s variety is the opposite. Most conservatives don’t want to build tanneries, and emphathise more with threatened homeowners than they do with would-be tanners.

Aren’t the property rights movement (eg, Pacific Legal Foundation) and, in a broader sense, the Sagebrush Rebellion, exactly the culture warriors you’re looking for? The property rights types, especially, with opposition to, say, the construction moratorium at Lake Tahoe. A couple of years ago, some folks decided that the park district in San Mateo County was a secret plot to steal offshore oil. And the takings initiative that effectively repealed Portland’s urban growth boundary was fueled that standard culture-war weapon, an ad featuring a grandma. Also, the Kelo backlash.

All of which is to say, t doesn’t have the national profile of the confederate flag, but land-use reactionaryism is a real force on the West Coast, at least.

I guess I think there is plenty such paranoia– since the mid-70s, land use regulations from zoning to rent control have been subject to a series of legal challenges calling them regulatory takings that must be compensated. You are right that these challenges have mostly (but not always) stayed in the courts, and have less often been fought as a matter of politics. I may overstate the ubiquity of this paranoia because I deal with it for a living, but I really think it’s there.

To the extent that land use regulation is a political issue, it generally takes place on a local stage– these are not even state laws we’re talking about, but county and city– so the national conservative operation need not, and cannot, be so involved. The Orgeon measure (Measure 5, I think it was) is a high-profile exception, with a real culture war feel to it. The heavy-hippy hand of the state is killing our freedom to build our houses on our property. I often wonder whether the inchoate conservative feeling of “over-regulation” (so rarely pinned down to any actual piece of law) is related to the pain one must go through to get the planning commission’s permission to build a second story on one’s home.

If the law of “regulatory takings” is, as you say, a dog’s breakfast, that is largely because the Supreme Court is caught on the horns of the same dilemma you might feel– they recognize that the built environment as we know it–especially the suburban environment– cannot exist without a broad range of regulations, each of which looks quite reasonable. But an emotional, ideological, partisan, or rhetorical commitment to liberty forces skepticism about those regulations. So they’ve set up a system where the regulations almost always survive, but proving them legitimate gets harder and harder.

I’ll argue Kelo some other time.

Isn’t the real irony here that zoning restrictions in privately managed enclaves (read gated communities) are stricter than public zoning restrictions. The net result of winning the battle here (to remove the restrictions) would be consolidation of private properties in larger communities with even tighter restrictions. (The same would of course happen if roads were private and set the rules.) This is the ultimate irony of propertarianism – property rights are much more powerful restricters than government regulation – at least in western democracies.

John:
“Possibly only the fact that Pinkwater’s Plumbean is obviously a Big Hippy has preserved us from an Epsteinian slippery slope, in polemical, culture war practice. Conservatives could do with astroturf Joe the Plumbeans, if only they could find them. Someone who can dump a big orange splot of pollution, while declaiming, like Walt Whitman, “My backyard is me and I am it! My backyard is where I like to be and it looks like all my dreams!” Take that, ‘neat street’ zombie liberal clones! That would substantially confuse the issue, in ways that are really philosophically unresolvable. (Bonus style points if you can somehow connect Plumbean with Pruneyard without looking like you are trying way too hard, as I clearly am.)”

Belle, a loving wife would turn off the computer when her husband’s drugs are kicking into high gear :)

In response to CapnMidnight on Oregon measures: Measure 5 was Oregon’s version of California’s Proposition 13 and had to do with capping property taxes (a predictable disaster). The land use measure was Measure 37, which was much modified after a short period of time by Measure 49, when it became obvious that, while the Measure 37 proponents had advertised about the state persecuting little old ladies, Measure 37 was actually going to enable large scale sprawl developments, many of them from old resource exploitation companies with surplus lands now near suburbs.

As a general nasty comment, I spent several years on a condominium association board (talk about unfairly maligned!) where we dealt with these issues, usually fairly successfully. My conclusion from that about this discussion is (a) Econ 101 is pretty useless in the real world and (b) guys like Yglesias are fundamentally lazy and self-indulgent and should go out and try to make something (not a hedge fund!) work in the real world.

OK, Holbo, I’ll stop razzing you. Just know that I will be silently judging your posts, wishing you had a thing to say instead of your usual ten tangents and six stuffy musings.

Seldom have I agreed with anything on the Internet as much as I agree with the final sentence of Gene O’Grady’s post at 17.

Having read in the Cliff’s Notes version of his Econ textbook that Money = Power, Yglesias assumes that business, since they have the money, must be able to get whatever they want from local governments. In fact, however, the influence of money on politics at the municipal level, as distinguished from the national level, is heavily diluted by the much higher visibility and transparency of the decision-making process. In any small or medium-sized jurisdiction, a city council that approved a rezoning to allow a tannery next to a middle-class residential neighborhood would be voted out of office, to a man or woman, at the next election (if not sooner). In theory, AcTanCo (the former Acme Tanning company) could pay the members enough to make it worth their while to forego any future political careers; but their successors would retain enough power to make the business unsustainable, so this would be a recurring and not a one-time expense.

(In practice, the collective voting power of homeowners is often exercised in regressive ways — no matter where you are on the totem pole, there is some group lower down that you want to keep out.)

I didn’t have much sense that Measure 37 was campaigned for in a hippy punching fashion, just the usual anti-government stuff. Interestingly, the guy behind that movement, whose name I forget, is actually a conservative democrat who indulged in a fair amount of anti-Country Club Republican rhetoric. Which is obsolete now, but makes some sense in terms of the past history of the Oregon Republican party.

On the other hand, Oregon hippies tend to be a little different. There are the Country Fair types, whom I enjoy (and generally respect), but there is also a quite peculiar set of aging reactionaries in tie-dye, at whom one can only roll one’s eyes.

Believe you me, zoning decisions in suburbia are extremely visible. Media coverage is irrelevant. Notices have to be posted and mailed to all property owners within a certain radius. Even if only one person opens the envelope, that person is going to get on the phone and knock on doors. The hearing, when it comes round, will be packed solid with loud opponents. A solid bloc of energized single-issue voters is a force very few local politicians are willing to defy.

Bryan Caplan said that the best hope for “libertarian populism” is “Free to Build“. Great minds think alike? Depends on your opinion of Caplan and Holbo.

I’ve never cared much for Epstein. What kind of libertarian thinks you shouldn’t be able to name your kid something that might offend others? He also seems to keen on I.P for my tastes.

Local politics is famously uncompetitive.

Obvious externality problems (tanneries in residential neighborhoods) are totally irrelevent to the political/culture war/Yglesias issues John’s post is trying to raise. These account for less than 1% of real world controversy. The “culture war” issue goes away when you see that “economic elites” are the primary beneficiaries of governmental restrictions on property rights, and would never mount a general campaign on this issue (this also explains the problems with Scalia’s decisions). The key issues fall into four categories:
1. Zoning supports economic discrimination designed to boost incumbent property values by keeping lower income folk out (minimum plot sizes, bans on apartments, etc)
2. Other rules drives density reductions and implicit subsidies to those preferring suburban lifestyles (all of Shoup’s work on parking subsidies, houses must have garages facing the street) some of which overlaps item 1, some of which subsidizes major developers, some of which is command-and-control rulemaking by autocentric state transport regulators
3. Extension of eminent domain to non-public uses, including ultra-lowball assessments that directly transfer wealth from individuals to major developers (Kelo, Poletown, Columbia Univ, etc)
4. Vague rules giving agencies huge discretion over basic permitting processes, creating “flexibility” but also huge opportunity for rent-extraction
“Conservatives” and “Business Interests” generally think 1,2 and 3 are wonderful, and are happy when agencies in #4 have been captured by their political friends (as with coal companies dominating environmental review boards in West Virginia, developers controlling zoning variance processes, etc). They only have a problem when the agencies have been captured by others (wetlands reviews, rent control boards etc). As noted, Scalia hasn’t figured away to outlaw property limitations on the rich guy with beachfront property, while preserving those limitations for suburban developers.
But given the dynamic of these issues, there’s zero probability of “movement conservatives” mounting anything (culture war or otherwise) on zoning/land use issues. And it explains why the Cato-type “libertarians” do nothing–the folks who bankroll the libertarian groups have no interest.

Richard Epstein philosophizes with a hammer about this, with the air of one delicately operating with a scalpel

Mustn’t miss an opportunity to play the pedant: Isn’t the “hammer” in Nietzsche’s “How to philosophize with a hammer” actually a tuning fork (rather than a bludgeon, which is presumably what Richard Epstein uses), so that Nietzsche’s phrase actually means “how to philosophize delicately and discerningly about philosophical nonsense” rather than “how to smash up philosophical nonsense”?

But Miles, real-estate speculators often buy up land in areas they think might eventually be developed, do absolutely nothing to increase its value, and then, if their guess turns out right (or if they had inside information), sell the land for a hefty (sometimes spectacular) profit, at a price determined by its anticipated value. Why should that be allowed, while homeowners subject to eminent domain are not allowed to profit from the anticipated increase in the value of their property by being offered a higher price for it?

On the other hand, using eminent domain to prevent speculators and others from bilking a municipality by demanding top prices for land wanted for public purposes seems reasonable to me.

A couple of decades back, I worked in the real-estate-acquisition/eminent domain section of the Highway Department of a bluish-uprple state in the NE quadrant of the USA. Some observations:

“Throwing away the taxpayers’ money” and “Taking peoples’ homes and paying them a pittance” are not, in practice, mutually exclusive criticisms.

We tried to be fair, and more than fair, to homeowners and small businesses. We wanted people to think they’d been treated well, not sending angry letters to the state legislators. We also wanted to get our part of the projects finished, without the legal staff and the courts adding costs.

You can’t please everybody – once a letter got bounced down from the President to my desk, from a little old lady protesting that the country lane she’d grown up on had become a five-lane commercial strip, and wanting her payment ( we’d deposited it into court a decade earlier).

The big problem with Kelo is that a lot of property in the ‘slums’ has been effectively abandoned. A lawyer, appraiser and radio host of those days often advised people whose passed-on grandmother’s house was in a ‘bad neighborhood’, needing repairs, and unsalable, to ‘find a bum on Skid Row, give him $20, have him ‘buy’ the property for $1′. When it becomes worthwhile to upgrade that property, a private developer will face the costs of many ‘suits to quiet title’, that could be more cheaply and quickly handled in condemnation proceedings.

Kelo is easy to resent on the ground that the profit ended up (or, actually didn’t) with Pfizer. We’d rather see public projects (I would rather, at least). But here’s a problem: there isn’t a municipality in this country that is going to build anything on a big scale without a private developer taking the risk. And at the same time, in dense areas, often the only available sites need more infrastructure and clean-up than developers will front– especially when they putting in, by correct public demand, a fair amount of below-market housing. So I, at least, don’t know how else to get the work done.

Just followed the link over to Yglesias.

“Status quo bias is a well-known psychological phenomenon.”

So what?

“Policy should, if anything, lean against people’s instinctive fear of novelty and change.”

Why?

So what’s supposed to be wrong with being a small c conservative here?

We’ve been here before

https://crookedtimber.org/2007/11/21/the-truth-in-conservatism/

cb @ 41: Yglesias is far from being the only blogger who churns out policy prescriptions that are fundamentally unsalable to the electorate. What makes him stand out, in my mind, from all the thirtysomething Ivy Leaguers who take it for granted that they would be in charge of any rationally organized polity, is that Yglesias often seems to think that he actually is.

Epstein on the limited right to naming babies:
http://www.forbes.com/2009/01/26/hitler-cake-shoprite-oped-cx_re_0127epstein.html

Ron Paul said SCOTUS should have refused to hear Kelo, as it had no jurisdiction:
http://www.lewrockwell.com/paul/paul259.html
But I suppose conservatives could still object that SCOTUS ruled it was an acceptable use of eminent domain and thus it would be legitimate for the federal government to do the same thing.

I found Epstein’s interview surprisingly unfrothy, but I’m a sucker for case law. What did set off alarm bells was this passing comment:

rampant majoritarianism means that 51 percent can indeed confiscate the wealth of all 49 percent, which is what you get under the New Deal.

We didn’t do the New Deal at school, or very much American history at all, but I don’t *think* it involved the government reducing a previously-wealthy 49% of the population to penury (or any other percentage). I think we would have heard. (For comparison, I grew up in a country with a tax system that could genuinely be called confiscatory at high income levels – the top marginal rate was 95%, or “one for you, nineteen for me” in the words of “Taxman” – but even that didn’t actually let the government confiscate the wealth of the rich.)

If that’s his (and Reason magazine’s) understanding of Keynesian government spending backed by mildly progressive taxation, perhaps we’re not as far from the wilds of talk radio as we seemed to be.

How about if we move the terminus ante to 1930?

This is a super post, since it is completely incomprehensible to anyone except a certain type of insider. Like a provincial graduate seminar.

“In any small or medium-sized jurisdiction, a city council that approved a rezoning to allow a tannery next to a middle-class residential neighborhood would be voted out of office, to a man or woman, at the next election (if not sooner).”

This goes squarely against my Norwegian experiences. Local authorities will usually do whatever they can to facilitate the establishment of new businesses. It gives the mayor something to brag about, and local government tend to be quite accommodating to business interests, including property developers.

And voters will approve of this. The tannery will bring employment, and generally be good for the local economy. Even if it’s inconvenient for the neighbours, they will only be a fairly small portion of the voters in the jurisdiction, and so can be easily outvoted by the rest.

Re SamChevre@48,

Problem with the “proportion who could live on their wealth in 1928 and could not in 1952” figure is that it conflates two causes:

First, it takes in Depression-caused failures of companies, deep depreciation of financial assets, both bonds and shares, and drop in value caused by reduced returns from real estate and other physical assets.

Second, it includes the inflation caused by World War II, and part of the Korean War, and the depreciation against the dollar of assets denominated in foreign currencies.

And, possibly, the definition of ‘live on their wealth’. Talking about maintaining a middle-class life by 1950 standards is one thing, but maintaining upper-class standards by ‘coupon-clipping’, at 1950 marginal tax rates, is something else. Problem is that the USA has few niches for the ‘impecunious upper class’ – you might have been able to _survive_ on the dividends from Grandpa’s corporation, but Levittown in 1950 was not a welcoming place for the leisure class.

Finally, re the Epstein interview:
The Constitution says “nor shall private property be taken for public use, without just compensation”. Three thoughts thereon:

First, your lawyers and the government’s lawyers can argue what ‘just compensation’ means in any given instance, just as they can argue what ‘reasonable doubt’ means, and a judge or jury must decide.

Second, if you don’t have an honest judge or jury, if the citizenry does not care about keeping their country strong and free and their rights preserved, then we’re all ‘up the creek’.

It is easy to argue that “X should not be attempted, because we cannot find honest and competent people to do X”. One can always find examples of dishonest, or even momentarily incompetent, people trying to do X, with bad results.

Humans are imperfect, but a lot of the time we get things right.

Third, you can run a 17th or 18th century state without ’eminent domain’, but, roughly, from the 1820’s on, a state that is unable to construct canals / railroads / telegraph lines /pipelines / highways / airports / etc, where needed, is a state without the means to preserve its existence. If a state has the right of ‘national self-defense’, it also has the right to ‘take private property for public use’.

jafd,

From the point of view of a coupon-clipper, the only item you list that isn’t part of the New Deal is the failures of companies caused by the Depression–all the others (currency depreciation, higher marginal taxes, reduced returns from real assets) are part of the explicit government policies of FDR.

And Phil–I think 1933 and 1940 are the wrong endpoints, as one feature of Rooseveltian policies was in giving the traditional elite less opportunity to recoup their losses than the constitutional system would have.

Agreed. But I think your starting point has to be the last cycle peak, as a major part of what the New Deal did was to change recovery affected people.

For comparison/clarity, let’s say that par tof the response to the recent US financial crisis had been banning mortgage securitizations. As there were none immediately prior, in one sense the ban would have had no effect–but I’d say that as the recovery went on, it would have had a significant effect, and so you have to look peak to peak, not low to peak.