Below are remarks by political commentator George Will from the Federalist Society event on Government Takings Litigation.
What is it about Love Field? In contrast to its pleasant name, this wee patch of Texas seems to attract trouble. There on November 22nd, 1963 Air Force One landed after a short flight from Fort Worth and from Love Field, President Kennedy drove to past the schoolbook depository. A few hours later at Love Field, Lyndon Johnson was sworn in as president. The Dallas Fort Worth airport did not yet exist. The building of DFW airport pulled Love Field into national policy controversies that led to this case. The case seems to some people, but not to others to implicate the Constitution's taking clause, which says that private property shall not be taken for public use without just compensation. The history of the public use stipulation has been rich in recent controversies arising from government uses of the power of eminent domain.
The Constitution's authors did not scatter adjectives carelessly. Until relatively recently, this straight forward understanding of the phrase public use, was that it meant use for things, roads, bridges, courthouses and so on used by the general public. However, this circumscription of the eminent domain power has been drastically weakened. A 1954 case involved what was then called urban renewal in the southwest quadrant of the District of Columbia, where conditions were appalling and dangerous. Most dwellings had no baths, indoor toilets, or central heating. The Tuberculosis rate was high. The court held that taking property for public use can mean for the public purpose of combating blight that harms the larger community.
In 1981, Michigan Supreme Court allowed the bulldozing of Detroit's poll town neighborhood. More than one thousand residences, 600 businesses, and many churches so the property could be conveyed to a more lucrative revenue source General Motors. Early in this century, Connecticut Supreme Court relying in the Kelo case on the Michigan Decision, held that an entire neighborhood could be razed to make way for a private commercial development that would constitute a public purpose by filling the public purse of New London's government. The US Supreme Court divided five-four in agreeing with the Connecticut court. The Love Field case involves a different but related threat to property rights. This one arising from a policy of domestic protectionism, which either begins as or soon breeds crony capitalism.
In the late 1970s, airline deregulation unleashed competition, which was annoying to the new Dallas Fort Worth airport. It feared that a pip squeak airline named Southwest operating out of Love Field would take flight and that Southwest would siphon off enough DFW traffic to slow the flow of revenues needed to service DFW's bonds. Congress, obedient to Jim Wright, a Texan who was Speaker of the House, stipulated by statute that flights out of Love Field could be made only by planes with 56 or fewer seats and could only fly to four contiguous states. When Southwest mounted a powerful protest against these restrictions, five parties to the dispute, Southwest Airlines, Dallas-based American Airline, the cities of Dallas and Fort Worth, and the DWF Airport Authority agreed to a compromise at the expense of a sixth party who was not a participant in the negotiations.
The sixth party was the Love Terminal Partners, owners of 12 Love Field gates that were demolished as part of the five party agreement to limit competition. The Love Terminal Partners had been paying tens of millions of dollars in taxes and other caring costs, perhaps wagering or hoping at least that deregulation and the consequent explosive growth of air travel would repay their investment. Seeking compensation for its take in the property, the Love terminal Partners won a 133.5 million dollar judgment in federal claims court. But, a federal circuit judge overturned this judgment, arguing that the Love Terminal Partners were owed nothing because the partner could not prove that their property was worth anything at the time it was destroyed, which raises two questions. If the gates were without value, why were the five parties to the agreement so eager to destroy them? If the gates were valueless, why did the partners pay so much to maintain them?
Clearly a number of persons ascribed value to the gates that the federal circuit judge considered valueless. Now, one should not casually ascribe motives to judicial reasoning. However, the circuit court's conclusion looks like an attempt to use the Love Field case to increase the difficulty of contesting regulatory takings generally. In a moment, a panel will discuss the details of this case and its importance. Before this however, it is pertinent to note that the case comes to the Supreme Court at an interesting moment in the nation's political and intellectual history. I refer not just or even primarily to the fact that suddenly a significant number of Americans are expressing warm feelings about socialism. They think it deserves one more chance to not make a mess of things. Rather, I refer to the revival of a theory that serves to derogate property rights. Progressives increasingly argue as follows: because everyone is socially situated, we should minimize ascribing achievements such as the acquisition of property and wealth to individuals. Instead, we should think of everyone's achievements as more or less society's achievements.
The progressive argument goes like this: because government is the organizer of society and because society is the shaper of the individual, government which is the enabler of striving is the proper arbiter of the equitable distribution and use of the social product, which is wealth. One progressive theorist Edwin C. Hettinger has attacked the very idea of intellectual property rights, by attacking the idea of individual achievement. He says and I quote, "invention, writing and thought in general do not operate in a vacuum. Intellectual creation is not creation ex nihilo. Given this vital dependence of a person's thoughts on the ideas of those who came before her, intellectual products are fundamentally social products. Thus, even if one assumes that the value of these products is entirely the result of human labor, this value is not entirely attributable to any particular laborer or small group of laborers."
Something quite sinister is being done here. The banal fact that no person lives or thinks, or works in a vacuum, the fact that everyone is situated in society becomes the basis for asserting a vital dependence of the individual on society. This in turn is said to justify declaring that there should be no individual property right to intellectual work. The products of such work are because of the individual's immersion in society, properly regarded as inherently socialized. By this argument, individualism is attenuated to the point of disappearance, and society can claim ownership to whatever portion it feels entitled to of what individuals produce. In the Soviet Union of course, society claimed ownership of the individual period. People wishing to immigrate were denied permission on the ground that they would be taking away education that had been provided by the state. Because the education could not be left behind, the individual could not be allowed to dissociate from society. In effect, the individual could not be distinguished from society. This is where the attack on individualism bleeds.
It begins with the assertion that Democratic theory "exaggerates the part played by human choice", so wrote Professor Woodrow Wilson in 1889. One can sympathize with the exasperation that caused Margaret Thatcher to explain there is no such thing as society. Well there is such a thing of course, but its existence should not be seen as an excuse for dissolving the individual into a broth of dependencies or regarding the idea of individual achievement as sociologically unsophisticated. Indeed, an oxymoron. This dissolution of the individual and this disparagement of the idea of individual achievement remains part of the pulse of progressivism. During the 2012 presidential election, there occurred one of those remarkably rare moments when campaign rhetoric actually clarified a large issue. It happened when Barack Obama speaking without a written text at Roanoke, Virginia spoke from his heart and revealed his mind.
"Look. If you've been successful, you didn't get there on your own. You didn't get their on your own. I'm always struck by people who think well, it must be because I was just so smart. There are a lot of smart people out there. It must be because I work harder than everybody else. Let me tell you something. There are a whole bunch of hardworking people out there. If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have, that allowed you to thrive. Somebody invested in roads and bridges. If you've got a business, you didn't build that. Somebody else made that happen. The internet didn't get invented on its own. Government research created the internet, so that all the companies could make money of the internet."
14 of those words of course, if you've got a business, you didn't build that, somebody else made that happen. Those 14 words ignited a heated debate and Obama aids insisted that their meaning was distorted by taking them out of context. Obama was merely reprising something said a few months earlier by Elizabeth Warren, a former member of his administration who then was a Senate candidate in Massachusetts. Warren said and I quote, "there is nobody in this country who got rich on his own. Nobody. You built a factory out there? Good for you. But I want to be clear, you moved your goods to market on the roads the rest of us paid for. You hired workers the rest of us paid to educate. You were safe in your factory because of police forces and fire forces that the rest of us paid for. You built a factory and it turned into something terrific or a great idea, God bless. Keep a big hunk of it, but part of the underlying social contract is you take a hunk of that and pay forward for the next kid who comes along." So said, Elizabeth Warren who was then a member of Harvard's faculty.
Of course, Mr. Obama with his statement and she with hers were bayoneting a series of strong men. Warren, like Obama, was refuting propositions that no one asserts. Everyone knows that all striving occurs in a social context, and all attainments are to some extent enabled and conditioned by contexts that are shaped by government. What made Warren's rift interesting and Obama's echo of it important, is that both spoke in order to advance the progressive project of diluting the concept of individualism and with it, the concept of property rights. Such dilution is a pre requisite for advancement of a collectivist political agenda. The more that individualism can be portrayed as a conceptual mistake, as a chimera, and the more that any individual's achievements can be considered as derivative from society, the less such achievements warrant respect. The more society is entitled to conscript, that is to socialize whatever portion of the individual's wealth that society considers its fair share.
Progressivism preaches that society may, as an optional act of political grace allow the individual to keep the remainder of what society thinks is misleadingly called the individual's possessions. Note however, that society necessarily means society's collective expression, the government. Note also, that government will not be a disinterested judge of what its proper share of other people's wealth is. The collectivist agenda is antithetical to America's premise, which is this. Government, including such public goods as roads, schools, and police is instituted to facilitate individual striving. Which is also known as, the pursuit of happiness. Of course, individuals often collaborate, sometimes through government to make collective choices that facilitate individual striving. This did not, however, compel the conclusion that the collectivity is entitled to take as much of the results of striving as it judges itself entitled to.
Warren's and Obama's statements were footnotes to progressivism's comprehensive disparagement of individualism and individual autonomy. Warren and Obama asserted something unremarkable. That the individual depends on cooperative behavior by others. Warren is a former law professor, Obama is a former law lecturer. They each are evidence for two axioms. One is that ideas have consequences. The other is that what happens on campuses does not stay on campuses. To the extent that the phrase individual initiative becomes, comes to be regarded as an oxymoron. To that extent, the rights to property that individuals acquire through initiative will become devalued, attenuated, even, chimerical. This is a facet of the intellectual context in which the Love Terminal case arrives at the Supreme Court. Ideas have consequences. The antidote to a bad idea, such as the progressive idea that property is necessarily socialized by the very context of its creation, needs a better idea.
A better idea deserves so to speak, its day in court. A better idea would be involved when the Love Terminal case has its day in court. The administrative state has a metabolic urge to expand the subordination of society to its regulatory impulses. The principle obstacle to the administrative state's imperialism is a robust regime of protection for property rights. This I suggest, is part of at least the background of what is ultimately at stake in the case we have gathered here to discuss. Thank you.