Robert Magee, Staff Writer, RMagee@albanylaw.edu & Steven Sharp, Staff Writer, SSharp@albanylaw.edu
The Albany Government Law Review Symposium: God and the Land commenced in Room 200 on the second floor of Albany Law School. Among the standing-room only crowd, most of whom were students, were a number of preeminent legal thinkers, including President William McKinley Distinguished Professor of Law and Public Policy and Senior Fellow, Government Law Center Paul Finkelman of Albany Law School, Raymond and Ella Smith Professor of Law, Associate Dean, and Director of the Albany Government Law Center Patricia Salkin of Albany Law School and the Honorable Judge Victoria A. Graffeo of the New York Court of Appeals.
The evening’s speaker, Chief Justice Randall T. Shepard of the Indiana Supreme Court, was introduced by Professor Stephen Clark of Albany Law School. Prof. Clark clerked for Chief Judge Shepard from 1995 to 1996 and prepared the hall for his former mentor with a few anecdotes about Chief Justice Shepard’s committment to open government and democratic reform. C.J. Shepard, Prof. Clark stressed, is a proud seventh generation “Hoosier.” In particular, he product of the rough-and-tumble foundation of Indiana’s frontier society. This even-headed approach to circumstances which would turn the hardest stomachs was perhaps the best way, Prof. Clark opined, to approach an understanding of C.J. Shepard’s understanding of the Constitution.
Chief Judge Shepard was born in Evansville, Indiana. Immediately upon leaving Evansville, he set about compiling an impressive resume. He graduated from Princeton University cum laude, received his Juris Doctor from Yale Law School and earned his Master of Laws Degree in judicial process from the University of Virginia. He returned to Indiana and served as an executive assistant to then-Mayor of Evansville, Russell Lloyd. He also served as a special assistant to the Under Secretary of the U.S. Department of Transportation.
His judicial career began when he was a Judge of the Vanderburgh Superior Court in 1980. Just five years later he was appointed by then-Gov. Robert D. Orr to the Indiana Supreme Court. At the time, he was the youngest Chief Justice in the United States. (1)
In the spirit of the presidential election, C.J. Randall T. Shepard (here we might add a “hereinafter Randy,” at his own insistance, but out of deference for his office we will decline) thought it prudent to announce: “I am Randy T. Shepard, and I approve this message.” He immediately developed rapport by commenting that any American institution which could so aptly fill a room on the same night that the America’s Got Talent finale was airing was one worth paying respect. (2)
He began with a rumination on the fact that the modern notion of rights, with the judiciary in the substantial role of protector, did not emerge until the second half the twentieth century. Even after Marbury v. Madison, (3) judges were primarily occupied with whether they should exercise authority at all or simply stand aside out of deference to the other branches. (4) C.J. Shepard began the body of his address by stating that the modern conception of rights did not come into its own until the second half of the twentieth century.
This movement was not entirely organic, instead it arose out of the work of legal scholars, practitioners and judges in what we now call the Civil Rights Era. (5) This was the true genises, C.J. Shepard said, of the dialogue which dominates modern constitutional discourse: what rights does the individual have against the whole? In this dialogue the court has a much greater role as a defender of liberty than the Founders had conceived of. (6)
The implications of this dialogue for land use law have been subtle yet pervasive. The pre-American understanding of land use was that the soveriegn was the owner of the land that everyone else could use it only at his pleasure. (7) As a People, we carried this idea into the revolution, except that in the Colonial experience the government could take your property but only if the legislature said it could. Still, however, the law required no compensation. (8)
The first instance in which the idea that no taking could be just without just compensation appeared in the Northwest Ordinance Ordinance of 1787. (9) Just a few years later, the idea was immortalized in the Fifth Amendment. C.J. Shepard stated that although the question of whether the takings clause would apply to states was a question for the early Supreme Court, (10) it wasn’t a question of authority; government could always act in a way which could harm the people’s property.
This idea persisted until the early 20th century. In Barron v. City of Baltimore, 32 U.S. 243 (1833), the plaintiff alleged that the City of Baltimore had altered drainage in such a way as to render his land unusable for its purpose as a mill. As such, the plaintiff argued, he had been deprived of his due process rights. Justice Marshall wrote that the answer was pretty clear. Due process meant that you were entitled to whatever process the state decided you were entitled to and since Baltimore’s drainage system was judiciously administered, the plaintiff had suffered no violation of due process. (11)
Along came the Pennsylvania railroad cases, in which the Supreme Court held that local ordinances which required coal to remain underground in order to prevent sinkholes (coal to which mining companies were otherwise entitled), amounted to a taking under the Fifth Amendment for which the plaintiff companies were entitled to just compensation. (12) This tacit overruling of Barron, was a landmark in takings jurisprudence in holding that we not take “takings” literally. However, it was not entirely clear at the time what had just happened, all that was known was that “if regulation goes too far it will be recognized as a taking.” (emphasis added) (13)
The present debate regarding land use and government intervention stems from the Supreme Court’s 1987 term, in which the regulators and landowners came, to what C.J. Shepard deemed, a “shoot-out at the OK corrale” in which the Court decided three cases, two of which went to the landowners and one to the regulators. (14)
Though takings clause claims have been a steady source of controversy, the next major upheaval occurred in Kelo v. City of New London. (15) This case, C.J. Shepard interpreted, essentially put the issue back to the states to determine whether taking someone’s house for economic development constitutes a taking.
The rights-based land use dialogue, however, is in contrast to the Civic Republicanism which Chief Judge Shepard believes ought to govern our understanding of the Constitution. (16) Under the ideals of Civic Republicanism, the action of common, but united, citizens acting together would protect and foster the common good of a society. C.J. Shepard ruminated that this might be called “The Collectivist Strain” of modern life and that it can be heard in the campaign dialogue emanating from both Barack Obama and John McCain’s presidential campaigns. “The Collectivist Strain” proceeds from two premises, 1.) that Americans are free because we are governed by ourselves, and that we’re 2.) free because we’re governed by laws and not men. This is true even though these ideas are clearly at odds in important respects.
Modern constitutionalism, C.J. Shepard suggested, could benefit from this Civic Repulicanism in two respects; 1.) this notion of republicanism fortifies the whole against those forces that would work an injustice against any one of our number, and 2.) it helps redeem the dual promises posed by self-government and blind justice.
Civic Republicanism also presents distinct possibilities for the improvement of civil society. For example, our thinking about our rights could become simplified as an expanded notion of due process would bring under its ambit the takings-without-just-compensation right embodied in the Fifth Amendment as well. It could also work to improve the development of administrative law, in particular that understanding of it as the product of a process of negotiated rulemaking by which rules are promulgated by an agency and then discussed and approved by a vote by those who they would effect.
C.J. Shepard pointed out that the actions of the American polity in response to the potential Wall Street bailout demonstrate the active public participation, discussion, thought and action which Civic Republicanism is meant to embody. In congressional offices in the past five days, he remarked, constituents were calling to protest the bailing of Wall St. out, but by Tuesday pro-bailout opinion grew in response to a public discussion of the nature of the crisis. (17) He concluded from this that citizens were examining the implications of a law, seeing how itwould affect their lives, and speaking out for the good of all in the sort of way our system was designed for.
Finally, C.J. Shepards held, the only conclusion to draw about the role of the modern judiciary while aspiring to the ideals of Civic Republicanism and the Civil Rights Era, was not that it was to be distant and mistrusted in defense of liberty, but that judges are leading thinkers whose job is to come up with ideas for the common good on behalf of the entire nation and insodoing safeguard liberty for the good of all.
1 – Indiana Courts, Justice Biographies, Randall Terry Shepard, Chief Justice available at http://www.in.gov/judiciary/supreme/bios/shepard.html.
2 – Lynn Elber, Sharon Osbourne Has Rooting Interest in ‘America’s Got Talent’ Finale, Star Tribune, Sept. 30 , 2008.
3 – Marbury v. Madison, 5 U.S. 137 (1803). See also James S. Liebman & Brandon L. Garrett, Madisonian Equal Protection, 104 Colum. L. Rev. 837, 635 (2004) (discussing Madisonian distrust of the “Courts’ Dangerous, Enervating Distance from the People” as protector of the rights of people).
4 – Mark A. Graber, Establishing Judicial Review: Marbury and the Judicial Act of 1789, 38 Tulsa L. Rev. 609, 632 (2003).
5 – Kenneth W. Mack, Rethinking Civil Rights Lawyering and Politics in the Era Before Brown, 115 Yale L.J. 256, 352 (2005).
6 – Graber, supra note 4, at 632.
7 – Michael C. Blumm & Lucus Ritchie, The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife, 35 Envtl. L. 673, 694-95 (2005).
8 – John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 Harv. L. Rev. 1252, 1292 (1996).
9 – William Michael Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale L.J. 694, 701 (1985).
10 – This was something Madison wrote about. See William Michael Treanor, Taking Test Too Seriously: Modern Textualism, Original Meaning, and the Case of Amar’s Bill of Rights, 106 Mich. L. Rev. 487, 524-25 (2007).
11 – Barron v. City of Baltimore, 32 U.S. 243, 247-48 (1833).
12 – Pennsylvania Coal Co. v. Mahan, 260 U.S. 393 (1922).
13 – Id. at 415.
14 – First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, 482 U.S. 304 (1987); Keystone Bituminous v. DeBenedictis, 480 U.S. 470 (1987); Nollan v. California Coastal Commission, 483 U.S. 825 (1987).
15 – Kelo v. City of New London, 545 U.S. 469 (2005).
16 – For a discussion on civic republicanism and property see Gregory S. Alexander, Time and Property in the American Republican Legal Culture, 66 NYULR 273 (1991).
17 – Shailagh Murray & Paul Kane, Lawmakers Revise Rescue Plan, Wash. Post, Oct. 1, 2008.