Don’t Euclid-ize Civil Liberties

Anthony Sanders · November 3, 2020

In “A Euclid for Civil Liberties,” Harvard Law Professor Adrian Vermeule recently discussed the 1926 case Euclid v. Ambler Realty as an example of what he labels “common good constitutionalism,” and called for similar jurisprudential development in other areas of constitutional law. His discussion was highly revealing of an assumption that legal thinkers often gloss over but has important (and usually bad) consequences. I wanted to call that assumption out and illustrate why the opposite is actually the case. The assumption is that increased complexity in society justifies increased government regulation.

Euclid was where the Supreme Court declared land use zoning constitutional. By “zoning” I mean the legal prohibition of applying one’s property to harmless uses simply because of where it is, such as preventing a property owner from turning their house into a duplex because the neighborhood is zoned “single family.” Although the Supreme Court itself hadn’t ruled on zoning’s constitutionality before (zoning itself wasn’t very old), prior understandings of property rights would have found it dead on arrival. Yet, zoning survived. Vermeule (correctly) chalks this up to the evolving conception of property rights of the Court’s majority. He (incorrectly) calls the older understanding an “obsolete 19-th century vision” and that the Court was right to adopt the new view because evolving circumstances called for a change in what the “common good” required.

At bottom he sums up these changes, and the change in constitutional meaning, with this line: “Greater complexity and interdependence imply greater scope for the guiding hand of the public authority.” He then asks if this retrenchment of liberties in the name of the common good and because of “complexity” could be done for property rights, why not for other rights? An example he provides is free speech, citing arguments that the “marketplace of ideas” metaphor doesn’t work because society is so interconnected.

Here’s the thing: Complexity does not justify more government regulation. In fact, it generally cautions for less. And the irony—which Vermeule completely avoids mentioning—is that zoning is prime example of this. By intervening in land use decisions with zoning governments have made cities worse precisely because they are complicated.

The reason why complexity and government regulation do not go hand-in-hand is because of something many readers may be familiar with: spontaneous order. It is far too big a topic for this short blog post, but the idea is that within complex systems rules and orders emerge without a central lawgiver providing them. I.e., complexity without a central authority does not generally equal chaos. A classic example is language. No one designed the “rules” for how we speak English, but they exist and work very well. You can read this sentence because those rules evolved, emerged, and today allow for us to understand each other. The same is true of just about every other kind of language. Of the few that are a product of “intelligent design” (such as Esperanto) they either are never actually used or are successful through subsequent spontaneous adaptation.

The example of spontaneous order you usually hear about is the market economy itself (by which I narrowly here mean prices in the economy). The prices of various goods and services are not set by any one rate-maker (even in our “mixed economy” of today this is generally true), yet in our system this allows for a balance of available and affordable products better than a communist system where a central authority directs allocation, production, and prices. This “Socialist Calculation Debate” isn’t even a debate anymore.

The same is true in land use. Requiring property owners in different sections of town to homogenize their uses so a “parasite” like an apartment or business doesn’t infect single-family areas (using Euclid’s own terminology) has led to misallocated investment, car dependance, legal racial segregation, educational segmentation, sprawl, municipal bankruptcy, and many other social maladies and pathologies. These things happen because property owners, residents, and entrepreneurs in cities cannot use property to organically adapt to the changes happening around them. Instead, their spatial settings are frozen, forcing neighborhoods to atrophy instead of heal, decay instead of adapt, and depend upon the building of countless new miles of highway to connect to new neighborhoods instead of reinvesting in old ones to bring new uses close by. (I’ve written before on the constitutional and sociological problems with the land use philosophy that Euclid enables if you want to take a look.)

It is precisely because of the complexity of land use that the cookie-cutter approach of Euclidean zoning does not work. Yet, for common good constitutionalism the shiny object of ”complexity” justifies central planning replacing the constitutional protection of individuals working out their problems on their own. In short, it’s like common good constitutionalism didn’t hear about the results of the Socialist Calculation Debate.

I don’t mean to suggest that complex human systems can’t receive any government regulation. My point is that just because a system is complex does not mean it should receive more government regulation, and generally means it should receive less, because planners are more likely to be wrong about what it needs. Certainly there are some areas that are complicated where more regulation might be justified than in other areas that are simpler. But the justification—either in a policy sense or a constitutional sense—will not be because of that difference. Indeed, the justification will need to overcome that difference. Some simple areas are regulated. Physical force used against other people is pretty simple, and pretty regulated. You hit someone without their permission and it’s not in self defense? You’ve probably broken the law, for good reason. Not that complicated a situation. You price a loaf of bread at $1.50 based on the multitude of different factors affecting your business and the wider baking industry? That’s very complicated, and partly because it is hard (actually impossible) for a planning to determine the “right” price, the government doesn’t do so.

The same is true of other areas of society, including the “civil liberties” that Vermeule calls to be Euclid-ized. Human communication is pretty complicated, with its own emergent norms, trajectories, rules, and feedback loops. Subjecting it to further regulation risks doing to the marketplace of ideas what zoning has done to our cities.

In the end, the Constitution protects our freedom to sort out our own rules and order. Euclid should serve as a lesson of why not to follow its lead.

P.S. You can read my prior critique of common good constitutionalism here.

Anthony Sanders is the Director of IJ’s the Center for Judicial Engagement.