Wednesday, October 12, 2011

Whither the Constitution?

Jim’s post linking to Ashira Ostrow’s latest article brought to my mind a question that has perplexed me for some time, for which I have yet received no satisfactory answer. When prominent, accomplished land use scholars discuss federalism why do they pay so little attention to the United States Constitution? However one views the desirability of any particular attempt by Congress to regulate land use, if Congress does not have the power to regulate then the rest of the discussion is moot. Yet, though extensive scholarly discussion has in recent months been committed to the problem of federalism in land use controls, scant attention has been paid to the powers enumerated in Article I.

I do not mean to single out Ashira Ostrow here. She is a very accomplished land use scholar. She has forgotten more land use law than I have ever known. I’ve not yet read her latest article (though I certainly will; her articles always reward the careful reader). From a cursory glance it appears that Ashira has paid attention to the Commerce Clause, arguing that land, like wheat grown locally for personal consumption (see Wickard v. Filburn), is a “national resource, properly subject to federal regulation.” Okay, but what about the Lopez and Morrison decisions? What about enumerated powers? That the national government has an interest in the use of land does not entail that it has the power to regulate land use.

Simply by mentioning the Commerce Clause, Ashira has paid more attention to the problem than most. For example, one of the most strenuously-asserted objections to the Religious Land Use and Institutionalized Persons Act (RLUIPA) is that it violates principles of federalism. Two very prominent scholars have argued that RLUIPA intrudes upon local control of land use without sufficient reason. I think these arguments fail, for reasons that I discuss in an article forthcoming in the Real Estate Law Journal. But the critics miss entirely a federalism argument that I believe is nearly-fatal to RLUIPA, namely that RLUIPA is not a permissible exercise of the Commerce Clause power.

RLUIPA does not regulate commerce. It regulates courts in their review of decisions by local governments, which concern land use. Specifically, it directs state and federal courts to subject to strict scrutiny review those land use decisions that substantially burden exercises of religion. And religious exercise is generally performed by claimants engaged in non-commercial activities. Under Morrison and Lopez, which to my knowledge remain good law, the Commerce Clause predicate for RLUIPA seems indefensible.

What’s baffling is that the critics of RLUIPA whom I mentioned both have sparkling credentials. They are at least as smart as I am and far more prominent. Yet they ignored the strongest, most obvious, and most basic federalism critique of RLUIPA. Why? Do they suppose that the Constitution is irrelevant to the federalism discussion? Surely they have enough intellectual integrity to avoid such a blunder. Do they not know about Morrison and Lopez? That also cannot be. Perhaps it is an act of charity toward less-prominent scholars; they leave the low-hanging fruit for people like me.

It’s strange. Federalism in land use law is a hot topic right now (due, in largest part I think, to the stellar scholarship of Ashira Ostrow). On several occasions recently I have found myself in a room full of land use scholars, all at least as intelligent and informed as I, who have provided sophisticated, detailed accounts of the local, state, and national interests involved in various land use problems but never stop to consider whether any of their proposals are constitutional. Am I missing something?

Adam MacLeod

| Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference Whither the Constitution?:



Your post seems to focus on a single consitutional basis for all federal interference with land use decisions. I think that's too easy a target for you. For instance, why would your argument for depriving RLUIPA of Commerce Clause justification be fatal to its validity? My understanding of the conventional arguments was that they focused on Sec. 5 of the 14th amendment. See Luke Meier (Drake)

Ashira, understandably, gives quite a bit of attention in her article to cell phone towers (looking to 10th amendment as well as enumerated powers concerns). Is the FCC just as vulnerable to your Commerce Clause analysis? I have fall break next week and am looking forward to reading through Ashira's article. I'll be looking for discussion of global warming and federal land use regulation. I would be surprised if she puts much value in finding a unifying constitutional basis for federal land use law. Do you think it's important to her project that there be one?

Jim K.

Posted by: Jim Kelly | Oct 12, 2011 1:55:49 PM


Thanks for the comment. Indeed it is an easy target. That's why I am baffled that it gets so little attention.

I don't think the Commerce Clause limitation is fatal, I think it's nearly-fatal. RLUIPA's substantial burden provision is perfectly constitutional when used to review individualized assessments, the door that SCOTUS left (partly) open in Smith, and which therefore provides a constitutional basis for Am. 14 Sec. 5 purposes. (All of this is in my article, by the way.) But there is no general constitutional ground for RLUIPA. Each use of RLUIPA must be tied to an enumerated power, and the Commerce Clause isn't it.

Of course there are powers other than the Commerce Clause. But to recognize that Congress has powers is not the same as explaining how a particular power supports a particular regulation. I look forward to reading Ashira's take on the problem.

Posted by: Adam MacLeod | Oct 12, 2011 3:18:15 PM

Thanks, Adam. I'm really looking forward to seeing your Real Estate Law Journal article. Please let us know when it's available online so we can blog about it.

Jim K.

Posted by: Jim Kelly | Oct 12, 2011 6:01:03 PM