Rule of Law

Opinion | We don’t live in the 18th century

In his Oct. 18 column, “The Supreme Court has a chance to rein in the bureaucratic blob,” Hugh Hewitt suggested that the Supreme Court went “off the constitutional rails” by refusing to recognize modern zoning authority as a “taking” prohibited by the Constitution’s takings clause.

If he gets his wish for the Supreme Court to interpret the takings clause in the “form instituted in the Constitution by its framers,” he is going to be sorely disappointed.

In fact, the takings clause, as originally understood when the Constitution was ratified, had a narrow scope that is consistent with zoning authority and most other land-use restrictions. Founding-era documents make clear that the clause was meant to narrowly prevent actual takings of land — the sorts of unlawful wartime requisitions common during the American Revolution and potential seizures of the property of landowners.

The takings clause does not tie the hands of elected officials in creating common-sense land-use laws. Indeed, if the court went off the rails from the original meaning of the clause adopted by the framers, it was not in the case Mr. Hewitt mentioned. It was in a string of cases that made it easier for big business to use the clause to object to regulations.

Right-wing activists and industry groups might now want the Supreme Court to expand the takings clause’s scope even further, but looking to the framers and founding-era history won’t help them in that effort. It will do just the opposite.

Nina Henry, Washington

The writer is counsel at the Constitutional Accountability Center.

The 18th century was a much simpler time, and government required far less organization than today.

As the country grew and commerce became less localized and more complex, federal agencies were created by Congress and given laws to administer to address specific issues. These issues were best addressed at the federal level rather than by the states because of interstate commerce.

Congress has neither the time nor the expertise to directly address these kinds of issues. But Congress can and does exercise control over executive agencies by holding oversight hearings and can review and stop regulations from taking effect.

So let’s stop this bashing of “unelected bureaucrats.” An administrative bureaucracy is essential to the functioning of government in a modern state.

Gary TimmHerndon