Dvar Torah- Chukat
In this Torah portion, Moses strikes a rock to bring forth water, and shortly thereafter (for reasons not obvious from the text) God tells Moses that he and Aaron will die before entering the land of Israel (Numbers 10:12).

The commentators are divided as to what exactly Moses did wrong - whether he should have spoken to a rock instead of striking it, or whether his tone in addressing the people should have been milder.

But what grabbed me this week was Samson Raphael Hirsch's comments about the matter: "Precisely by making even Moses and Aaron expendable for further progress . . . God demonstrates the sanctity of His absolute greatness, whose objectives are not dependent on any outside factor and to which even men like Moses and Aaron are not indispensable."

Just as no one was indispensable 3300 years ago, none of us are indispensable today. In the words of Charles de Gaulle, "the cemeteries are full of indispensable men." (And no doubt, indispensable women).

Congress gets it right, Pelosi misunderstands Constitution
Last week, the House voted to prohibit federal bureaucracies from subsidizing the use of eminent domain for profit-making projects. In other words, local governments can still take your property and give it to developers (as long as they pay just compensation as required by the Kelo ruling), but they can't do it with federal money. (See story here).

Nancy Pelosi demurred, asserting "This is in violation of the respect for separation of ... powers in our Constitution."

Dead wrong. The Supreme Court didn't say that local governments HAVE to take property for eminent domain when developers want them to- just that the Constitution does not preclude this option. So if local governments don't want to use eminent domain they don't have to- and similarly, if the state and federal governments don't want to subsidize such eminent domain they don't have to either.

In fact, I think Congressional action might just give us the right balance between public interest in redevelopment and the public interest in protecting private property- eminent domain that is (as President Clinton once said about abortion) safe, legal and rare.

The case for levity
A Talmudic Tale: Rabbi Beroka, upon coming upon Elijah the Prophet in the marketplace, inquired whether anyone there was worthy of the world to come. Elijah at first says "No" but then points to two men.

"What is your trade?", asked Rabbi Beroka.

They replied, "We are jesters. When we see someone depressed, we cheer him up."

- Raphael Jospe et. al., Great Schisms in Jewish History, p. 135 (noting that Baal Shem Tov, the founder of Hasidism, liked this story)

From his mouth to God's ears
Mickey Kaus asserts that Bush should appoint a conservative who will stir up some Democratic opposition to distract public opinion from Social Security and Iraq, proposing as follows:

Under this theory, Bush doesn't want to appoint someone so wildly conservative that he or she would be the judicial analogue of invading Iraq or privatizing Social Security. But he certainly doesn't want to appoint someone so moderate that Democrats won't mount a massive, cacophonous blocking effort. ... An honorable, undiluted conservative with strong doubts about Roe but no Lochneresque private-property enthusiasms would seem to be what is called for.

Exactly what I want on the merits- a conservative who actually believes in judicial restraint, the kind who is more interested in reversing the Warren/Burger Courts' socially liberal activist decisions than in rolling back the New Deal.

Unlike Kaus, I doubt that's what we'll get; I'm not sure that my type of conservative will be any more confirmable than a libertarian, and in any event most younger scholars (and, I suspect, most younger judges) tend towards the latter end of the spectrum.

dvar Torah- Korach
This week's Torah portion, Korach, describes the attempts of Korach to seize power from Moses. Korach asserts that Moses and his brother Aaron are hogging power (Numbers 16:3). Moses responds by challenging Korach to a test: Korach and Moses will burn incense, and God will decide by accepting one sacrifice or the other (Id., 16:6-7). God responds by causing the earth to swallow Korach (Id., 16:33-34).

What's so awful about Korach's conduct? So he stirred up a little controversy, and the Earth swallows him up?

Shlomo Riskin notes:

"I believe that the answer to our questions lies in the two legitimate definitions of the Hebrew word for controversy, mahloket: does it mean to divide, (lehalek) or to distinguish (laasot hiluk), to make a separation or a distinction; the former suggests an unbridgeable chasm, a great divide which separates out, nullifies, the view of the other, whereas the latter suggests an analysis of each side in order to give a greater understanding of each view and perhaps even in order to eventually arrive at a synthesis or a dialectic of both positions together!

With this understanding, the initial comment of Rashi on the opening words of this week's Torah portion, "And Korah took", becomes indubitably clear: He took himself to the other side to become separated out from the midst of the congregation. { } Korah made a great divide between himself and Moses . . . he was interested in nullifying rather than in attempting to understand the side of Moses. On the other hand, when the Talmud (B.T. Eruvin 13b) describes the disputes between Hillel and Shammai, it decides that "Those and those (both schools) are the words of the living G-d. If so, then why is the normative law decided in accord with the school of Hillel? Because they are pleasant and accepting, always teaching their view together with the view of the school of Shammai and even citing the position of Shammai before citing their own position?."

In other words, the ideal debater (Hillel) is fair-minded: understanding his opponent's position, having some respect for his opponent's position, perhaps even learning a bit from his opponent.

Korach, by contrast, wanted to (metaphorically) bury his opponent- and got (literally) buried himself!

So when you hear people blathering on the talk shows or on the Sunday morning public affairs shows, ask yourself: are they being fair-minded like Hillel? Or are they trying to bury their opponent like Korach?

Last week, I skimmed through a book at the latter end of the spectrum. The book, written in the 1970s, complained that mid-20th century Jewish leadership (Federation bureaucrats, etc.) wasn't doing enough to promote Jewish day schools - at first actively opposing day schools, and later doing very little to support day schools. Obviously, the author had a point, and his view is conventional wisdom today.

But his tone towards Jewish leadership was consistently insulting; he attacked them for being obsessed with blending into the majority culture and for opposing government support of religious schools, but made no effort to explain why they thought as they did. Not surprisingly, the author's book fell into obscurity, and he is known today less for his foresight on this issue than as an all-around lunatic. Why? Partially because like Korach, he just wasn't fair-minded. He didn't see why his adversaries' point of view, though wrong in the long run, might have seemed reasonable at the time.

more on Kelo
I noticed quite a bit of hooting and hollering in the blogosphere on how awful the Kelo ruling is. (See Volokh for interesting points of both sides). I'm not going to get into the merits of the argument in detail, but I just want to point out that Kelo isn't any more pro-government than prior case law.

In Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), a case cited in Kelo, the government of Hawaii took the land of large-scale landowners and gave it to tenants, in order to "reduce the concentration of ownership" - in other words, a naked land redistribution scheme. The Court upheld Hawaii's actions because a taking is for a public use (as required by the Takings Clause) as long as the state legislature "could rationally have believed that [the taking] could promote its objective." In other words, as long as the government isn't stark raving mad (and of course, compensates the landowners) it can take land.

Do I approve of cases like Midkiff and Volokh? I'm not sure. I'm enough of an originalist to care what the Framers' generation thought, and unfortunately don't know anything about what the Framers thought about the meaning of the term "public use" - that is, whether public use means government ownership or merely a broader public purpose.

Assuming for the sake of argument that originalism provides no clear answer here, I instinctively lean towards the majority's view. I realize that often, politicians will go overboard in using the eminent domain power - maybe more often than not. But having said that, it seems to me that sometimes the public does benefit from the exercise of the eminent domain, and that the public benefit is not automatically greater when government rather than, say, Hilton Hotels, is the ultimate owner of the land. And I would prefer judicial deference to elected legislators to judicial micromanagement of elected legislators.

Now of course you might argue "But the government shouldn't take our land at all, whether it is the ultimate buyer or not." As a policy matter, you might be right - and you have every right to lobby your city council to stop taking property, or to lobby Congress to amend the Takings Clause. But the Constitution as written allows takings as long as the government compensates owners for the land taken.

discussing law stuff for once- Supreme Court rules in Kelo
Since I teach and write about land use regulation, I thought I would mention that the Supreme Court just issued a ruling in the Kelo case.

The Takings Clause of the Fifth Amendment states that property may only be taken by government for a "public use." In Kelo, the issue was whether, if the government takes someone's property and gives it to a private company for redevelopment, that taking is for a "public use." The Court held, by a 5-4 vote, that a "public use" existed, because the taking served the broad public purpose of redeveloping a depressed neighborhood.

Justice Kennedy wrote a separate concurrence; because he was the swing vote, his concurrence is probably entitled to more weight than the majority opinon. He wrote:

"My agreement with the Court that a presumption of invalidity is not warranted for economic development takings in general, or for the particular takings at issue in this case, does not foreclose the possibility that a more stringent standard of review than that announced in Berman and Midkiff might be appropriate for a more narrowly drawn category of takings. There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause. Cf. Eastern Enterprises v. Apfel, 524 U. S. 498, 549-550 (1998) (Kennedy, J., concurring in judgment and dissenting in part) (heightened scrutiny for retroactive legislation under the Due Process Clause). This demanding level of scrutiny, however, is not required simply because the purpose of the taking is economic development.

This is not the occasion for conjecture as to what sort of cases might justify a more demanding standard, but it is appropriate to underscore aspects of the instant case that convince me no departure from Berman and Midkiff is appropriate here. This taking occurred in the context of a comprehensive development plan meant to address a serious city-wide depression, and the projected economic benefits of the project cannot be characterized as de minimus. The identity of most of the private beneficiaries were unknown at the time the city formulated its plans. The city complied with elaborate procedural requirements that facilitate review of the record and inquiry into the city's purposes. In sum, while there may be categories of cases in which the transfers are so suspicious, or the procedures employed so prone to abuse, or the purported benefits are so trivial or implausible, that courts should presume an impermissible private purpose, no such circumstances are present in this case."

It seems to me that Justice Kennedy is focusing on intent: normally economic development takings are OK, but if the stench of political favoritism exists maybe not.

Opinions are at findlaw.com.

back to Jewish stuff- dvar Torah on Shelah Lekha
Now that I'm not traveling every week,* I am going to try something different: doing a dvar Torah** online (not necessarily something original mind you-often just highlighting someone else's good work).

This week's Torah portion contains one of the Torah's more well-known stories. Moses sends 12 spies to visit the land of Canaan (aka "Israel" or "the Promised Land") and report on it. 10 of the spies say the land is dangerous and that the Hebrews should stay out, while 2 (Caleb and Joshua) disagree. The people go along with the majority and are punished for their lack of faith in the Divine promise that the Jews shall settle tbe Promised Land. The 10 faithless spies die, while Joshua and Caleb live long enough to enter the Promised Land.

An essay in this week's Forward
points out an interesting wrinkle: at first, only Caleb contradicts the anti-Israel majority (Numbers 13:30). Joshua does not endorse settlement in the Promised Land until the people threaten to dump Moses and return to Egyptian slavery (Numbers 14:4).

What's going on here? Perhaps Joshua initially shared some of the 10 faithless spies' misgivings- but once he realized that the majority was out of control and wanted to do crazy things like return to Egypt, he flip-flopped and stood with Moses.
As a result, he is richly rewarded- not only does he live to see the Promised Land, he becomes the leader of the Hebrews in the Promised Land. What can we learn from Joshua?

1. Sometimes it's OK to flip-flop.

2. More particularly, it's OK to flip-flop when your "side" gets out of control. During the 70s and 80s, once-liberal intellectuals like Irving Kristol and Jeane Kirkpatrick*** became Republicans because they thought the Left was out of control; the liberal agenda had changed so radically that it was no longer their agenda. In the 1950s, liberalism had meant support for the New Deal and staunch opposition to Communism, while in the 1970s liberalism meant opposition to the Cold War. Just as Joshua abandoned the majority when its agenda turned into return to Egyptian slavery, Kristol et. al. abandoned liberalism when liberals turned wishy-washy about Communist slavery.

Similarly, today a few conservative intellectuals are beginning to think the Right is out of control- that under the Bush Administration, the conservative agenda has changed so much that their beliefs are no longer their agenda. While conservatives once stood for balanced budgets and a relatively lean government, this Administration has expanded the government and the deficit. Other conservatives have broken with this Administration's warlike foreign policy. Though most conservative pundits/intellectuals are still behind Bush, a few (like Andrew Sullivan and Steve Chapman) endorsed Kerry, and others (like Pat Buchanan) supported Bush but with grave reservations.

Of course, the dissenters are not always on the side of history. Some conservative Democrats (like 1928 Democratic nominee Al Smith) abandoned FDR over the New Deal- but the dominant American historical tradition in America has favored the New Dealers' side of that argument.

May we have the courage to switch sides when our "team" is out of control, and the wisdom to know when this is the case.



*Staying in Carbondale for next few weeks, moving to DC in mid-July.

**That is, a brief essay on this week's Torah portion.

***I would use the term "neoconservatives" but since the Iraq war started that term has acquired a very different meaning (i.e. some war opponents seem to think anyone who supported the war is a neocon).

Now Playing: Some of the more interesting and unusual books I've read over the past month or so
Saadia Gaon, Book of Opinions and Beliefs
Sheryll Cashin, The Failures of Integration
Azriela Jaffe, Two Jews can Still Be A Mixed Marriage
Bruce Katz et al, Redefining Urban and Suburban America
Robert Bullard et al, Highway Robbery

To read my reviews of these and other books go to amazon.com and search for the books in question.

more photos online
My photos of Buffalo, Cleveland and Philadelphia (as well as Atlanta and Carbondale) are now online at my photopic album.

fun facts from Brookings
The Brookings Institution recently issued some collections of essays, entitled "Redefining Urban and Suburban America" about the 2000 Census. I just read Volumes 1 and 2 of these books. A few interesting facts:

*80 of America's 100 largest cities actually gained population in the 1990s. Many of them gained not only singles, but married-couple families: not just sprawling Sun Belt cities that grew through annexation, but even denser, more singles-oriented cities like New York City (11% growth) and Portland (17% growth).

*But despite constant media caterwauling about gentrification, most of this growth was due to working-class, usually Latino, immigration rather than to an invasion of upscale whites. Many allegedly gentrifying cities (e.g. NYC, Chicago) gained population, but lost non-Hispanic whites. And though poverty rates declined slightly in many cities, most cities still had poverty rates far higher than their suburbs. For example, Chicago had a 19.6% poverty rate, as opposed to its suburbs' 5.6%. Even the residents of more prosperous cities like San Francisco and Portland were more likely to be poor than suburbanites; in both places, city poverty was 11-13% and suburban poverty 6-8% (Portland having slightly higher numbers in both categories).

*Similarly, cities had fewer higher-income households than their suburbs. In the 100 largest American cities, only 16.6 percent of households had incomes in the top quintile nationally (that is, top 20 percent)- and that number includes some "cities" that are really suburbs, such as Plano, Texas, a suburb of Dallas. Again, even some fairly prosperous cities did not reach the 20 percent mark, such as Portland (16.4%) and Boston (15.0%). By contrast, suburbs consistently contained a disproportionate share of high income households- in the average metro area, 25.5% of suburban households were in the top 20% of earners nationally.

*Poverty was less concentrated than in the 1980s; the number of very poor city census tracts (i.e. 40% poverty rate or below) declined by 21% in the 1990s.

*Within cities, varying patterns emerged. Downtowns gained population in most cities, even some declining ones. But in many cities, inner-city neighborhoods near downtown lost population while outer-ring neighborhoods near suburbia were more successful (especially in cities with undeveloped land at the fringes, the latter in built-out cities). For example, Philadelphia has a very prosperous residential downtown surrounded by some very bad neighborhoods, which in turn are surrounded by some not-so-bad neighborhoods at the city's fringes (e.g. Chestnut Hill, Manayunk, Roxborough) which in turn are surrounded by suburbs.

*In all but the most fast-growing areas, some suburbs are not in such great shape. Nationally, about a quarter of suburbs lost population in the 1990s.

Transport Chicago conference
This weekend I went to the Transport Chicago conference in (as you might guess) Chicago. Most of the attendees were staffers at Chicago transit agencies so from a networking perspective it was a bust. But a couple of the presentations I listened to were interesting. In particular:

*Payton Chung of CNU used the Chicago city budget as a case study of how local government subsidizes driving. He pointed out that the costs of city street network spending and of car-related police work exceed revenues from car-related taxes, thus rebutting the common claim that roads "pay for themselves". This sort of argument has been rebutted by environmentalists in the context of state and federal spending, but Chung's presentation is the first I have seen that focuses specifically on local spending.

*There was a panel on airport siting in which representatives of the Milwaukee and Gary airports asserted that they were "Chicago's third airport." The Gary airport now has minimal passenger service. However, that airport has ample political support in Indiana, ample runway space (and room for more because the airport is in an industrial wasteland), and has its own independent market in Chicago's Indiana suburbs (which aren't very close to Midway, let alone O'Hare or Milwaukee). The Gary presentation was an example of how sprawl works in the airport context: build an airport close to downtown and you have community resistance from neighbors understandably concerned about airport noise- build it in the middle of nowhere and you can expand to your wallet's content.

the child shortage in SF, Portland, etc.
In recent weeks, I've read numerous stories about how various cities (most notably San Francisco and Portland) are suffering a shortage of children- the evident message being that even the most attractive cities will never be attractive to parents, I guess.

So I decided to dig up Census data to try to compare SF and Portland to other cities. The most obvious statistic one might use is percentage of people under 18: but that statistic runs head-on into the fact that poor people tend to have a lot more children than rich people. So for example, 14% of SF residents are under 18 as opposed to 31% of residents of the city of Detroit- but surely no one is dumb enough to suggest that Detroit is more child-friendly than SF.

My ideal statistic would measure the number of children in a city but control for social class; since I couldn't find such a statistic (at least not tonight), I decided to try to use race as a surrogate (admittedly an imperfect one - but whites ARE richer than everyone else on average).

The statistic I used: percentage of white, non-Hispanic persons over 3 who are in K-12 schools (public OR private) (you can find it as Table P147 in Census SF3 data set, divided into kindergarden, 1-8, high school). Here are some numbers:

REALLY BIG CITIES

# of whites # of whites % of whites
over 3 in K-12 who are kids
LA 1,065,529 122,910 11.5
NYC 2,719,644 334,931 12.3
Chicago 884,116 87,602 9.9

VERY PROSPEROUS CITIES

San Francisco 332,958 17,537 5.3
Portland 387,725 51,522 13.2
Seattle 373,281 32,383 8.6

CITIES WITHOUT SUBURBS (Cities that have grown by annexing everything that is not nailed down)

Oklahoma City 315,531 48,584 15.3
Indianapolis 507,788 82,748 16.2
San Jose 310,224 46,370 14.9
San Diego 586,683 69,152 11.8

TWO-CLASS CITIES (upscale white population, mixed black population)

Washington 155,557 8759 5.6
Atlanta 127,291 9429 7.4

AGING, TROUBLED INDUSTRIAL CITIES (with large working class white populations)

Philadelphia 629,602 86,040 13.6
Buffalo 147,609 20,785 14.1
St. Louis 145,205 17,894 12.3
Cleveland 179,557 26,773 14.9
Hartford 21,189 1749 8.2

SOME OTHER CITIES THAT DON'T FIT ANY OF THE ABOVE CATEGORIES (median household incomes are $44-47,000, far below SF/DC/Atlanta, far above industrial cities which start at Philadelphia's $37K a year and then go down from there)+

Denver 280,537 24,620 8.7
Boston 284,322 21,285 7.5



Some thoughts:

1. Portland got a bum rap. San Francisco didn't. But even SF isn't significantly more child-free than DC.

2. There's pretty much zero correlation between the number of children in a city (white or otherwise) and its overall prosperity, etc. If anything, relatively safe, prosperous places have fewer children.

3. No real correlation between density and a low number of white children. Some high density cities (DC, Boston, SF) have a low child %, but others (NYC, Philly) less so. Atlanta is a very low density city with a low child %.

4. Some (but not 100%) negative correlation between housing values and number of children.
Here's median home values for Anglo households, together with Anglo child % above:

Home value (in thousands
of dollars) Child %


SF 471 5.3
San Jose 425 14.9
Washington 380 5.6
Atlanta 327 7.4
LA 303 11.5
Seattle 274 8.6
San Diego 262 11.8
NYC 239 12.3
Boston 207 7.5
Denver 185 8.7
Chicago 164 9.9
Portland 157 13.2
Indianapolis 103 16.2
Hartford 98 8.2
Oklahoma City 85 15.3
Cleveland 78 14.9
St. Louis 73 12.3
Philadelphia 73 13.6
Buffalo 64 14.1

I had no idea Martin Luther King wrote about transportation, but evidently he did
"Urban transit systems in most American cities, for example, have become a genuine civil rights issue- and a valid one- because the layout of rapid-transit systems determines the accessibility of jobs to the black community. If transportation systems in American cities could be laid out so as to provide an opportunity for poor people to get to meaningful employment, then they could begin to move into the mainstream of American life. A good example of this problem is my home city of Atlanta . . . The system has virtually no consideration for connecting the poor people with their jobs."

MLK, quoted in Highway Robbery (Robert Bullard, ed.), p. 17

Thoughts from PolicyLink conference
I am just finishing a PolicyLink conference on regional equity and smart growth. Made some interesting contacts, learned a little. A few of the high points:

*David Rusk , speaking on regionalism, pointed out that the issue of property rights is not necessarily one that favors sprawl. Conventional pro-sprawl wisdom is that attempts to restrict suburban development are an attack on the property rights on developers. But Rusk pointed out that sprawl affects the property rights of people who own land in distressed urban centers; as cities decay, property values nosedive. And when state and county governments support sprawl through new suburban infrastructure etc., they are reducing the value of urban land just as growth controls might reduce the value of rural land.

Is there a legally cognizable takings claim? Possibly not, given the difficulty of showing exactly how much of an urban neighborhood's decline is due to a given public policy. But certainly there is a claim worth noticing in the political arena.

*Robert Bullard spoke about making transportation investments more equitable. Conventional pro-sprawl wisdom is that roads are good and transit is bad because roads pay for themselves and transit doesn't. Bullard pointed out a flaw in this argument: the state highway system is full of cross-subsidies from one group of drivers to another. For example, in Georgia metro Atlanta drivers pay 40% of the gas tax revenues, but metro Atlanta receives a much smaller proportion of transportation spending (I think Bullard said 17%).

*Ray Suarez talked about public opinion and had a great story. Once upon a time in the 80s, Suarez was conducting "man in the street" interviews, asking people what they would do with some vacant land in downtown Chicago. The most common answer was "a park would be kind of nice around here." After a few of these responses, he started asking people if they would feel safe walking through the hypothetical park after dark, or if they would enjoy the park during a Chicago winter. As you might guess, support for the park option nosedived. Lesson: what we think at first glance might not be what we think after mature consideration.

*Lots of material on Geographic Information Systems (GIS) mapping and new ways to find out data on neighborhoods, etc. Links to follow in a later post.

Some things that distressed me too. To a much greater extent than the Congress for New Urbanism conference , this was a gathering of lefties working for nonprofits. So naturally some things were said that were not quite my cup of tea.

For example, there was a session on framing issues where one of the speakers recommended a loony left comic book as an example of framing. The comic book, though ostensibly about sprawl and regionalism, contained a lot of Reagan-bashing, Pentagon-bashing, etc. Would it work in Berkeley? Yes. Would it work for anyone to the right of Dennis Kucinich (let alone the 50.7% of Americans who voted for Bush)? I doubt it.

There was a session on housing affordability, and a couple of people agreed that developers in the District of Columbia should be weighed down by all sorts of inclusionary zoning and affordable housing requirements. I can understand the logic behind these programs in prosperous cities like San Francisco. But DC is a city that is still losing population and still has a 20% poverty rate- lower than some cities, but higher than the nation and region as a whole (See Census Quick Facts for more information. DC is not in as desperate shape as some cities- but I still think it has a lot more in common with Baltimore or Cleveland than with San Francisco.

Cute phrase
"In God We Trust, All Others Bring Data"

- Prof. David Hyman of U. Illinois Law School, speaking at SIU today

neat photo sites
I discovered a bunch of interesting websites with lots of photos of various cities (kind of like what I'm doing but 10 times as good), including sites for:

Detroit (including the famous "Classic Ruins of Detroit" on one of the internal links at the top of the web page)
Washington, DC
St. Louis
andEast St. Louis.

Have fun!

my career plans
I'm not sure I've mentioned this before, but I'm moving in August, from Southern Illinois University's law school in Carbondale, Illinois to George Washington University's law school in our nation's capital. This position will be yet another one-year visitorship.

shul or industrial park? You be the judge

O'Toole takes me on
I used to fantasize that one of these days, someone more well-known than I would take enough notice of my work to criticize it. That day has come.

Randall O'Toole, a prominent defender of the sprawl status quo, whacked away at one of my old articles (on why conservatives should criticize sprawl) on his website.

To be fair, O'Toole actually does a reasonably good job of characterizing my basic argument at the start. He states:

"Lewyn's basic argument is that urban sprawl resulted from government policies. Without those government actions, most people would still be living in relatively high-density cities they did a century ago. Those government policies are:

Federal housing policy
Federal highway policy
Federal education policy
Local zoning policy."

But then, he gets into trouble, as follows (O'Toole's comments are always in quotes):

1. The all-or-nothing fallacy

"In each case, Lewyn's claim can be checked with a simple test: If a particular policy caused sprawl, then places that didn't have that policy should not be suburbanizing. Of course, the reality is that suburbanization is happening everywhere . . . " (For example, O'Toole writes that suburbanization "was rapidly taking place long before 1934" when the Federal Housing Administration began its pro-suburban mortgage insurance policy).

Wrong, for two reasons. First, if suburbanization is the result of a wide variety of policies, some suburbanization would be happening even if one policy was subtracted from the mix.

Second, suburbanization is not an "all or nothing" matter (thus my reference above to the "all or nothing" fallacy). New York City in 1936 and Detroit in 2005 both experienced some suburbanization- but I don't think anyone would argue that these two communities were identical or equally suburbanized.

I am willing to admit that if none of these policies happened, we would have some movement of population outward, if only to accommodate increased population. But I doubt suburbanization would have gone so far as to turn any American city into the kind of basket case that Detroit or St. Louis is today. Perhaps those older cities would be where newer cities like Denver are today: that is, a growing, reasonably healthy city surrounded by faster-growing suburbs.

2. Ignoring state and local policy (as well as early federal policy)

O'Toole: "Lewyn's transportation policy is, of course, the Interstate Highway System, which supposedly drained cities of their people. But this program did not begin until 1956, and most cities did not actually have interstate highways until the 1960s. Yet suburbanization was rapidly taking place long before that time."

But the federal government (as well as state and local governments) were spending money on roads long before 1956. The federal government starting aiding road construction as early as the 1920s. (see my article at 26 Columbia Journal of Environmental Law 259 (2001) - and state and local governments were involved by then, if not earlier. Given my assumption that road construction aids suburbanization, it makes sense that some suburbanization would have occurred between the 1920s and 1956.

3. Misunderstanding government stupidity

"Like other sprawl opponents, Lewyn paints the cities as victims of federal transportation policy. But it is important to realize that the only reason interstate highways entered the cites, instead of going around them as was initially planned, is because the cities themselves demanded it. Harvard transportation professor Alan Altshuler notes that big-city mayors realized that downtowns were "strangled and congested. And one way to bring them back was to deal with the congestion problem." If the highways had not been built as the mayors wanted, says Altshuler, "the decentralizing consequences might well have been even greater than they were."

I agree that most mayors wanted the highways. But I think by now it is pretty obvious that that was a stupid decision.

As far as Mr. Altshuler's opinion (or at least O'Toole's interpretation of same), I think it makes no sense whatsoever.

If congestion downtown caused people and businesses to leave downtown, we would see a pretty strong negative correlation between vibrant downtowns and traffic congestion - that is, less congested downtowns (like Buffalo's) would prosper, and as downtowns grew more congested they would shed people.

But in fact, as traffic congestion exploded during the 1990s, downtowns through the U.S. gained population. According to a Brookings report on America's downtowns, some of the downtowns that gained population were in atrociously congested regions such as Houston, Atlanta and Boston, while the downtowns of low-congestion cities such as St. Louis continued to wither.


4. The not-so-slight exaggeration

"The education policy that Lewyn says drained the cities was the federal integration effort, especially forced busing. Here we have counterexamples in both time and place. These policies did not begin until the 1960s, long after suburbanization was well underway. Moreover, race was virtually a non-issue in many American cities that had tiny minority populations, yet those cities suburbanized just as much as more racially diverse cities."

Just as much? Well, let's look at the big cities that lost the most population over the past few decades.

St. Louis lost 60% of its population, more than any other large city- and St. Louis certainly falls into the category of "racially diverse" cities, since it is now majority black.

Other big cities hovering around the 50% mark (Buffalo, Cleveland, Detroit, Pittsburgh) are all cities with pretty substantial black populations- Cleveland and Detroit are now majority black, Buffalo about 40%, Pittsburgh a little less. I an not sure what lily-white city O'Toole is thinking of that "suburbanized as much as more racially diverse cities."

Maybe O'Toole is thinking about Seattle- a city with a not-very-large black population relative to big cities, but with ample sprawl. But I don't think Seattle is in any way analogous to Detroit. The city of Seattle's population has actually grown in recent decades - not as fast as its suburbs, to be sure, but growth it is.

5. What about Houston?

"Finally, Lewyn argues that zoning forced people to live at lower densities than they would prefer. If so, then Houston, which has no zoning, should be much denser than Los Angeles, which has long had zoning. Of course, the exact opposite is true: the Los Angeles urban area has about 7,000 people per square mile while Houston has less than 3,000 per square mile."

But as I have written elsewhere,Houston has most of the same types of anti-pedestrian, anti-transit land use regulation as Los Angeles. Houston has minimum lot sizes, setbacks, minimum parking requirements, and extremely wide streets. The only difference between Houston and Los Angeles is that Houston's municipal code doesn't tell you whether to put housing or shops on a given block. But if you do put housing or commerce on the block, you'd better be sure its sprawl-inducing housing or commerce.

(P.S. I realize that Houston has begun to liberalize its municipal code in recent years- but most of Houston was built before the code changed).

6. What about Europe? Or, the all-or-nothing fallacy part 2

"Counterexamples to all of Lewyn's claims can also be found by looking at cities in Canada, Australia, and Europe. Many of these countries have long had strong anti-suburban policies, yet they are all rapidly suburbanizing. Any differences in the timing of such suburbanization can be traced to differences in income rather than urban policy."

No doubt there is some suburbanization in cities outside America. But is it really true that there's no difference between Berlin and Detroit? Of course not. No doubt that, for a variety of reasons, cities outside America have experienced some suburbanization. But not as much. Patrick Condon writes that Canadian cities:

twice as dense as their American counterparts, with 14.2 persons per hectare in the U.S. compared to 28.5 in Canada. Canadians own nearly as many cars as Americans, but drive them about half as much per year.

Now, I know that Canada isn't exactly Hong Kong when it comes to suburbanization. Most people drive to work, just like in America. But I think Condon's point is that even countries similar to America have not taken suburbanization quite as far.

Again, O'Toole's reasoning exemplifies the all-or-nothing fallacy: he suggests that if there was some suburbanization outside the United States, other countries must not be any different from Detroit.

7. The self-fulfilling prophecy

O'Toole makes some other points that strike me as self-fulfilling prophecies, in the sense that policies he favors cause them to be true.

a) efficiency

"The reality is that autos are the lowest cost form of transportation we have for most urban-length trips. On average, Americans spend about 18 cents a passenger mile driving, and subsidies and social costs of autos add maybe 5 more cents. Yet the cost of mass transit averages about 75 cents a passenger mile and rail transit is even more expensive."

I am not going to get into a numbers argument on this issue; other people on both side of the question (John Holtzclaw and Todd Litman on the pro-transit side, Wendell Cox on the other side of the argument) are far more knowledgeable than I.

But it does seem to me that an argument based on monetary efficiency is a self-fulfilling prophecy. If the United States organizes its metropolitan areas in a sprawling, auto-oriented matter, then of course transit will be more expensive per passenger mile than it would otherwise be. If we could somehow grow more compactly (concededly a big if), transit will be less expensive per passenger mile because there will be more passengers and fewer miles.

b) Preference

"Because cars are more flexible, more convenient, and less expensive than public transit, the vast majority of people prefer to drive. Since they prefer to drive, most also prefer to live in areas that have been designed for cars, which mainly means the suburbs and other areas built since World War II."

But the reason they prefer to drive is because they live in areas designed for cars. People who live and work in places that are not designed for cars (New York City) prefer to use public transit.

c) Taxes

"The fact that taxes tend to be significantly lower in the suburbs than the cities is only an added bonus."

Which might have something to do with 50 years of middle-class flight and suburbanization. A city that loses half its tax base will of course have higher taxes. (And there are instances of cities that have lower taxes than their suburbs and still lose population- Buffalo, for example).

8. Confusing libertarianism and obeying the road lobby

Each sentence or two in O'Toole's piece is instructive.

a. Defending the highways

"For example, Lewyn's first prescription is "no new roads." A truly conservative position would be that the federal government should get out of the business of taxing and funding transportation. But Lewyn's idea that we should have a "paving moratorium" is absurd."

I'm not really sure I see the difference (leaving aside privately funded toll roads, which I haven't thought that much about).

"Ironically, the federal road program was at one time one of the few federal programs that worked from a conservative viewpoint. It was funded out of user fees and transportation engineers designed the roads to best meet the needs of those users. Those engineers enjoyed a market-like feedback relationship: if they built roads where they were needed, people would use them and generate more user fees."

I'm not quite sure what O'Toole likes about the road program, other than that it promoted suburbanization.

Is O'Toole's point that roads were funded out of user fees, and that roads are therefore virtuous because they pay for themselves? I don't think that's quite right. Assuming arguendo that the program as a whole paid for itself (which is certainly highly controversial, given the debate over the social costs of driving - see 7-a above), it doesn't necessarily follow that each road paid for itself.

Often, a new road has not been funded out by the users of that particular road. Rather, it has been funded out either out of general tax revenue, or taxes and user fees affecting all drivers (i.e. gas taxes, license fees). Gas taxes tax users of EXISTING roads to benefit users for NEW roads. The two groups are not identical, and may have sharply varying interests.

Users of existing roads live in existing neighborhoods, and when a new road makes a new suburb more accessible, the people who move to the new suburb might benefit- but the people who stay in their current neighborhood might not. The latter group may actually be worse off- for example, if they stayed in the city, they may suffer, as the new suburbanites flee and cause the "stayers'" neighborhood to deteriorated, causing property values to decline, crime to rise, the tax base to decline, etc. Eventually, the "stayers" feel like they have to leave too in order to be physically safe.

(And if it did pay for itself, why was government involvement even necessary?)


Or is O'Toole think roads are a good program because people actually used the roads? By that logic, welfare pre-1996 should have been the perfect federal program: the government paid young women to have babies, and the young women actually used welfare to bring up those babies. Does that mean government was satisfying a need?

b. Tax and tax, spend and spend

"This system broke down for two reasons. First, the user fees, being mainly a cents-per-gallon tax, failed to keep up with inflation."

Randall O'Toole complaining that taxes aren't high enough? Oh, my!

c) Empty slogans

"Second, urban planners are now using those fees more for social engineering than for transportation."

Last time I checked, the federal government alone spent $35 billion on highways. Is that social engineering or transportation?

Actually, both. If "social engineering" is the use of government to achieve a social objective, transportation spending is "social engineering".
(For example, he explains in the next paragraph that he likes road spending because it achieves the wholesome social goal of more travel).

But I don't think that is O'Toole's point. O'Toole is trying to use "social engineering" as a synoym for "government spending I don't like." But "social engineering" is an emotionally loaded term, so O'Toole uses it.


d. Induced travel

"Lewyn's big objection to roads is that, if you build them, they will be used. In other words, he buys into the "induced travel" argument. If there is any truth at all behind the induced travel claim, it is that new roads make travel less expensive so more people will travel."

O'Toole's point misses the point of the induced travel argument. New roads are sold to the public, rightly or wrongly, as a cure for traffic congestion. The induced traffic argument isn't that travel is bad in the abstract, but that new roads don't do the job- that the extra travel means that Jane Commuter spends just as much time stuck in traffic as she would have otherwise. (And supporters of the induced traffic theory tend to believe that the traffic has all sorts of unwelcome unintended consequences).

e. The transit distraction

"In other words, does Lewyn think that it makes more sense to build things (such as light-rail lines) that won't be used than things that will be used? If so, such muddleheaded thinking betrays conservative principles."

That's really a separate argument. It seems to me that a principled libertarian should agree with my arguments about roads, even if we agree to disagree about whether the money saved should be devoted to light rail or to tax cuts. (And I'm not sure we would in every concievable circumstance; obviously I wouldn't support light rail in the middle of the desert).

Though for what its worth, I think some highway programs (e.g. tearing up urban neighborhoods with expressways in the 1950s) were so harmful that throwing the money in a sewer would have been more socially useful.

8. Education

"Lewyn suggests that school vouchers will take care of the education problem. While that is certainly a conservative policy, I suspect that vouchers are not going to lead a lot of families to move back to the cities. Many cities today still have excellent school systems that were never disrupted by forced busing. Yet their school-age populations are typically declining even as their overall populations grow because -- as the New York Times -- families prefer low-density suburbs."

Having lived in Buffalo and Cleveland, I can state with some certainty that if I had a dollar for every person I met who said "I would live in the city but for the schools" I would have enough money to . . . well, at least enough to fly him to Buffalo and Cleveland to meet those people.

As far as "cities with excellent schools", I am not sure what O'Toole is talking about.

9. Confusing local control and small government

"Lewyn's approach to zoning is almost as bad as his no-new-roads prescription. He considers the idea of abolishing zoning, but says that this "would eliminate sprawl-limiting ordinances (such as those limiting development in newer suburbs) as well as sprawl-creating ordinances." His apparent desire to keep "sprawl-limiting" zoning doesn't sound like limited government to me.

Instead, he wants the states to pass laws dictating how local government do their zoning. Such laws should prohibit low-density zoning, require that apartments and duplexes be allowed in all residential areas, and require that residential zones also allow retail shops. This is exactly the sort of government intrusion that conservatives should oppose."

So O'Toole is saying that if states prevent local government from regulating you to death, that's "government intrusion." Wrong. That's preventing government intrusion.

Now to be fair, that sort of regulation does impinge on another good conservative principle, local control - just like Oregon's Measure 37 (which O'Toole supports).

But I believe that in this case, less government should trump local control, because of the importance of the broader value of increasing consumer choice. And since O'Toole apparently purports to be a libertarian, he should come down even more strongly on the "less government" side of the issue than a wishy-washy pragmatist like me.

10. Confusing tyranny of the majority and small government

"The fact is that, until recently, most zoning codes reflected what people wanted: low densities, separation of multi-family from single-family homes, and separation of residential from commercial areas. Again, we can see this by looking at places that have no zoning and see that the covenants written by developers and maintained by homeowner associations follow similar patterns."

If suburban homeowners want to follow a contract, fine. (Though I'm not sure whether that covenant should survive the original contracting parties, as courts have generally allowed). But just because the majority wants X doesn't mean the majority should always be allowed to enforce X on people who haven't signed a contract.

11. Parking

"Finally, Lewyn would forbid cities to require developers to include "more free parking than the market would dictate." Apparently he doesn't realize that such requirements arise because developers often build less parking than needed in the expectation that people will park on public property."

So let me get this straight. On the one hand, government should tax and spend and regulate us to ensure that more people drive more miles on the roads (which are public property). On the other hand, if people actually park their cars on public property, that's bad? I'm not sure I see the point here.

"While zoning might not be the best way to solve this problem, the real problem today is that planners are trying to limit the amount of parking developers are allowed to build."

On what planet? Even Andres Duany's New Urbanist Smart Code sets out minimum parking requirements.