Document Type

Article

Publication Title

Maine Law Review

Abstract

The editors of the Maine Law Review have been kind enough to offer me the opponunity to respond to Laura Underkuffler's criticism of my work in her recent Godfrey Lecture, "When Should Rights 'Trump'? An Examination of Speech and Property," which appears in the preceding issue. Underkuffler's argument proceeds at a high level of abstraction and is, I believe, vulnerable to criticism on both theoretical and practical grounds. Starting with the former, she is obviously drawn to Professor Ronald Dworkin 'swell-known metaphor of rights as trumps. The clear implication of his language is that a right is an absolute that simply rolls over interests (be they of convenience or principle) that are arrayed against it. The source of his appealing metaphor is the game of bridge where, of course, the lowest trump will prevail over the highest card in some other suit. Rights are the trumps; the competing interests are from the other suits, or so we should believe. But in truth this metaphor misunderstands the nature of all legal argument. Had Dworkin spent a bit more time dissecting his bridge metaphor, he would have realized that, at any given level, no one can play in trumps so long as there is anyone who wants to play in no trump. Life is the same way. So long as individuals put up their own reasons for action, then their game is played in no trump. There are, in other words, no absolutes in this world. The claims that are made are all, as Underkuffler elsewhere acknowledges, only presumptive. The serious question is what things count, and with what weight, on either side of the ledger. The thought that any claim for property or speech should count as an absolute is something that we should all be quite happy to disregard. In my view, this presumptive nature of property rights is well captured by the Constitution, even as I wish to interpret it. The language of the Takings Clause is not drafted as an absolute. It does not say that "no property shall be taken for public use, without consent of the owner of the property in question." Its "just compensation" compromise allows the state to take so long as it pays and so long as it does so for public use. In so doing, it strips the individual of the right to resist any taking for a public use. The tough interpretation that I defend has built into it a recognition that the state can always purchase when its efforts to regulate fail. Let the state decide that its citizens need more open spaces, then it can purchase park land. This middle position is a vintage no trump situation. The state may decide to act, but if so, it cannot just trump the private property interest. It has to pay. There is a division of authority that respects the need to overcome holdouts (who could prevent the assembly of a highway or railroad) and also respects the equal need to be sure that ordinary individuals are not squashed simply because of some imperative social need to occupy and use their property. The upshot of this position is one of compromise that allows the state to call the shots so long as it is prepared to pay the piper.

First Page

23

Volume

53

Publication Date

2001

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