The Right Can’t Have It Both Ways

At a glance, California Supreme Court plaintiff Claude Lambert and Gov. Pete Wilson seem to have little in common. Looks, however, are deceiving in this curious and hypocritical intersection of the right’s judicial agenda.

Lambert is claiming, in a case pending before the state’s high court, that the “takings” clause of the U.S. Constitution (“nor shall private property be taken for public use, without just compensation”) requires the city of San Francisco to buy his hotel, to prevent him from turning his residential units into a tourist hotel.

Meanwhile, Wilson, in an apparently unrelated move, joined a white contractor in a federal appellate court case in arguing that the Constitution’s equal protection clause prevented California from demanding that the contractor demonstrate good faith efforts to employ minority subcontractors.

Lambert and Wilson share the same lawyer, the Pacific Legal Foundation, and each is playing an important role in a large and successful campaign from the right to use conservative state and federal judges to achieve the right’s political objectives.

While the two are rarely linked, the property campaign (to establish the takings clause of the 5th Amendment as a barrier to all forms of land use regulation) and the race campaign (to establish the equal protection clause of the 14th Amendment as a barrier to all affirmative action) share top billing on the judicial agenda of many conservatives and libertarians. The cases are litigated by the same “public interest” law firms, mostly notably the Pacific Legal Foundation and the Institute for Justice, and promoted by the same congressional sponsors, most prominently Sen. Orrin Hatch (R-Utah). Taken together, the hypocrisy of those who are promoting these campaigns emerges.

Both campaigns ask judges to overturn a large number of democratically enacted laws and regulations, but for conflicting reasons. The race campaign asks judges to overrule all forms of affirmative action based on a narrow reading of the equal protection clause. Previous U.S. Supreme Court decisions interpreted the clause to give legislators some leeway in promoting affirmative action, because “equal protection” does not necessarily require treating people who are different the same and because it seemed to make no sense to interpret the clause--enacted to help former slaves obtain equality--to prohibit laws designed to rid society of the lingering effects of slavery and state-sanctioned discrimination. But the plain meaning of “equal,” the promoters of the race campaign insist, requires treating everyone identically; the broader meaning of equality, as well as the merits of the arguments in favor of affirmative action are irrelevant. All you need to do, they say, is follow the plain text of the Constitution.

The property campaign, on the other hand, asks judges to overturn a wide variety of health, safety and environmental laws based on an expansive definition of the term “take.” Eschewing the narrow wording of the 5th Amendment, which on plain reading prohibits only actual expropriations of private property, the property campaign relies on a host of sources outside the Constitution for arguments as to why the takings clause should be broadened to require compensation whenever a land-use regulation diminishes the value of property. Conspicuously absent from this campaign is any suggestion that the plain language of the constitutional text, and that language alone, should control.

The promoters of the two campaigns simply cannot have it both ways. If textual ambiguities and policy arguments are irrelevant to the interpretation of the equal protection clause, then they are equally irrelevant to the interpretation of the takings clause.

Constitutional scholars have defended judicial protection of minorities against claims of judicial overreaching by arguing that it is appropriate, and indeed enhances the democratic operation of government, for federal courts to protect those who are shut out from or subjected to systemic prejudice within the political process.

The only rationale for the simultaneous pursuit of the race and property campaigns appears to be this: Judicial intervention is appropriate to protect the interests of developers and nonminority candidates for government-sponsored positions. It is hard to imagine a less compelling judicial agenda.