Volume 91

The Constitution in Two Dimensions: A Transaction Cost Analysis of Constitutional Remedies

This Article reveals the underappreciated role of liability rules in constitutional law. Conventional constitutional theory insists that constitutional entitlements require, by their nature, property rule protection. That is, they can only be taken with the owner’s consent; nonconsensual takings can be enjoined. This Article shows that many constitutional values are in fact protected by liability rules, which allow for forced transfers followed by payment of compensation. Substantive entitlements form one dimension of constitutional law. The various ways in which they are protected against transfers form the second dimension. The full picture of constitutional law only emerges from looking at both.

The Article locates liability rules in diverse areas such as the First Amendment prior restraint doctrine, the Third Amendment, Fourth Amendment search and seizure rules, the Due Process Clauses, the Takings Clause of the Fifth Amendment, the Self-Incrimination Clause of the Fifth Amendment, and the Excessive Bail Clause of the Eighth Amendment. Thus constitutional theory’s insistence on property rule protection fails account for how some constitutional values are actually protected. This Article develops a richer understanding of the relationship between constitutional remedies and constitutional entitlements. The transaction cost perspective on constitutional law reveals previously unnoticed connections between various doctrines, and provides a new criterion for evaluating their strengths and weakness.

This Article also presents new evidence that the Constitution does not require property rule protection and can be satisfied with liability rules. It shows that the oft-overlooked Third Amendment explicitly mandates property rule protection for the entitlement it defines. This property rule, together with the Takings Clause’s explicit liability rule, shows that for other entitlements the Constitution does not require any particular form of protection. The explicit property rule and the explicit liability rule define the second dimension in constitutional law.

Relocating Disorder

Judicial challenges to order-maintenance policing apparently are leading some city officials to adapt the tools of property regulation to a task traditionally reserved for the police—the control of disorderly people. Examples of efforts to regulate disorder, ex ante, through land-management strategies include homeless campuses that centralize housing and social services, neighborhood exclusion zone policies that empower local officials to exclude disorderly individuals from struggling communities, and the selective targeting of inner-city neighborhoods for aggressive property inspections. These tactics employ different management techniques—some concentrate disorder and others disperse it—but they have same goal: to relocate urban disorder from one place (where it is perceived to be harmful) to another (where it hopefully will be more benign). These developments are not surprising. Urban policymakers long assumed that regulations ordering land uses effectively curb disorder (an assumption that I have questioned). And, moreover, the broad deference granted to the government-qua-regulator makes disorder-relocation policies particularly attractive. Unfortunately, these new disorder-relocation policies may create what Dan Kahan has called a cost of rights problem: In an effort to avoid constitutional challenges, local governments may adopt policies that impose costs at least as significant as their order-maintenance-policing substitutes. This Article seeks to understand what those costs might be.

“The Indispensable Basis of Democracy”: American Catholicism, the Church-State Debate, and the Soul of American Liberalism, 1920-1929

Several recent works of scholarship explore how Establishment Clause jurisprudence has been shaped by broader political debates over the role of religion in public life. This literature focuses on the politics of anti-Catholicism, particularly during the early years of Establishment Clause jurisprudence in the1940s and 1950s. While not questioning the centrality of this period to the historical narrative, this Note argues that the political contest over church and state took shape in an earlier debate over the compatibility of Catholicism and the Constitution during the 1920s. The Church’s response to the anti-Catholicism of this period was of particular importance. Catholic apologists actively challenged the widespread argument that Catholicism could not be reconciled with a democratic liberal political order. In fact, Catholics not only defended the doctrinal compatibility of Catholic social thought and the constitutional separation of church and state. They argued that Catholicism was ideally suited to preserving the moral foundations of the free society. Far from imperiling American democracy, Catholicism was, in the words of the Church’s leading social theorist, “The Indispensable Basis of Democracy.” Thus, rather than aiming to depoliticize the church-state fracas of the 1920s, American Catholics drove the issue ever more fully into the realm of politics and culture. In the process, Catholics developed a worldview that now stands at the heart of Establishment Clause politics.

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