Articles Tropes of Anxiety and Desire: Metaphor and Metonymy in the Law of Takings Louise A. Halper* [Truth] wander[s] about in what you regard as being the least true in essence: in the dream, in the way . the nonsense of the most grotesque pun defies sense, in chance, and not in law but in its contingency... 1 Jacques Lacan * Assistant Professor of Law, Washington & Lee University School of Law. My thanks to David Gray Carlson, Susan Gilles, Lash Larue, Doug Rendleman, Carol Rose, and Jeanne Schroeder for their useful comments. I am particularly grateful to my colleague David Caudill for his support and encouragement when it was most welcome. Thanks also to the Frances Lewis Law Center for providing financial support for this research, to Jason Harmon, W&L '96, for his research assistance, and, one last time, to Tom Yoder, W&L '95, for his (reli)able research assistance. Earlier versions of this Article were presented to faculty colloquia at Washington & Lee and at Seton Hall. 1. JACQUES LACAN, The Freudian Thing, or the Meaning of the Return to Freud in Psychoanalysis,in EcRrrs: A SELECTION 114, 122 (Alan Sheridan trans., 1977). Yale Journal of Law & the Humanities, Vol. 8, Iss. 1 [1996], Art. 3 Yale Journal of Law & the Humanities [Vol 8: 31 In this Article, I consider the linguistic tropes' the Supreme Court has used in certain opinions concerning the law of takings.' The trope of metaphor, I claim, is utilized in Pennsylvania Coal Co. v. Mahon,4 the case that established that land-use regulation could be a taking, while the trope of metonymy governs Lucas v. South Carolina Coastal Council,5 the case that established that a regulation that extinguishes the market value of land is a taking. Each is an opinion about whether a regulation that takes value from land can be said to represent seizure of the land itself. Since the land itself is not seized, treating the two events as though they were the same is a decision that there is sufficient correspondence between seizure and regulation to educe the same juristic response: a decision in fact that one figures, or represents, the other. Thus, each opinion is concerned with the aptness of a trope, or representation, and its outcome is based upon trope. In Part I, I give an account of Lucas in which I claim that the opinion relies upon metonymy, the trope of association. Linguistic analysis of legal texts requires some justification, and I attempt to provide that in Part II. Also in Part II, I suggest a psycholinguistic understanding of metaphor and metonymy. The opinion's two metonymies are the identification of land with its money value and the identification of public interest with private rights. In Parts III and IV, I give an account of these tropes of value and of right. In Part III, I examine the discourse of Justice Holmes, the author of the Mahon opinion, with respect to profitability, and, in that light, discuss Lucas' reduction of land to its profitability. In Part IV, I examine the opinion's displacement of public interest with private right and argue that this displacement is a result of the opinion's anxiety as to the power of the state. In Part V, I argue that anxiety and desire are at the heart of the opinion. I conclude that the stability Lucas seeks in its account of property in land is illusory and unattainable. I. LUCAS IN THE LAW OF TAKINGS As a "direct effect"6 of an act of the South Carolina legislature, real estate developer David Lucas lost one million dollars; the coastal property for which he had paid this large sum was rendered 2. A trope is "a figure of speech; a word or expression used in a figurative (rather than a literal) sense." VINCENT M. COLAPIETRO, GLOSSARY OF SEMIOTIcS 199 (1993). 3. The Fifth Amendment of the Constitution of the United States provides that private property shall not "be taken for public use without just compensation." U.S. CONST. amend. V. 4. 260 U.S. 393 (1922). 5. 112 S. Ct. 2886 (1992). 6. Id. at 2889. https://digitalcommons.law.yale.edu/yjlh/vol8/iss1/3 2 Halper: Tropes of Anxiety and Desire 19961 Halper "valueless."7 In Lucas, the Supreme Court held that such a land-use regulation may amount to a taking of private property although the land itself remains both physically inviolate and in its owner's possession.' South Carolina's management of coastal development began in 1977 with the passage of its Coastal Zone Management Act;9 at roughly the same time, it appears, Lucas began his local career as a developer. ° In 1986, he bought two lots on the Isle of Palms near Charleston with the "intention .. to do what the owners of the immediately adjacent parcels had already done,"'" that is, build a house on each. Lucas did not build on the lots after he bought them, though he commissioned architectural drawings of the houses he planned to construct. In 1988, an amended version of the 1977 Act moved the permissible building line landward, trapping Lucas' unbuilt lots between the building line and the sea. 2 He could no longer put any habitable structures on his lots. The amendments brought "to an abrupt end"' 3 Lucas' leisurely plans to develop his land, and he "promptly" filed suit. 4 At trial, Lucas conceded that the 1988 amendments were a legitimate exercise of the police power to prevent harm to the shoreline; 5 he claimed that he was nonetheless entitled to compen- sation from the state because its statute had taken the total market value of his property. The trial court agreed. When the South Carolina Supreme Court reversed the trial court, it did so on the basis of the point Lucas had conceded: "[W]hen a regulation respecting the use of property is designed 'to prevent serious public harm,' . .. no compensation is owing under the Takings Clause regardless of the regulation's effect on the property's value."' 6 In an opinion written by Justice Scalia, the Supreme Court of the United States reversed, 7. Id. 8. Id. at 2899-2900. 9. 1977 S.C. Acts 123 (codified as amended at S.C. CODE ANN. § 48-39-280(C) (Law. Co-op. Supp. 1993)). These amendments were known as the Beachfront Management Act. 10. Lucas, 112 S. Ct. at 2889. 11. Id. 12. 1988 S.C. Acts 634 (codified as amended at S.C. CODE ANN. § 48-39-280(C) (Law. Co- op. Supp. 1993)). 13. Lucas, 112 S. Ct. at 2889. 14. Id. at 2890. 15. Lucas, by failing to contest legislative findings, conceded "that the beach/dune area of South Carolina's shores is an extremely valuable public resource; that the erection of new construction, inter alia, contributes to the erosion and destruction of this public resource; and that discouraging new construction in close proximity to the beach/dune area is necessary to prevent a great public harm." Id. at 2896 (quoting Lucas v. South Carolina Coastal Council, 404 S.E.2d 895, 898 (S.C. 1991)). 16. Id. at 2890 (citing Lucas v. South Carolina Council, 404 S.E.2d at 899). Published by Yale Law School Legal Scholarship Repository, 1996 1 Yale Journal of Law & the Humanities, Vol. 8, Iss. 1 [1996], Art. 3 Yale Journal of Law & the Humanities [Vol 8: 31 holding that, under the Takings Clause," a regulation that extin- guishes the value of land by barring an "essential use" like home- building is a taking.t8 19 In 1922, in Pennsylvania Coal Co. v. Mahon, Justice Holmes had2 ° said that a regulation might indeed be a taking if it went "too far. Before Mahon, the Court had consistently rejected Fourteenth Amendment challenges to regulation that took the value of land,2' arguing that such regulation falls within the police power of the state. Although Mahon held that the police power was not unlimited with respect to land use, the distance that "too far" measures was never precisely defined. As Holmes had written in Mahon, the danger was that, if a compensable regulatory taking occurred with every loss of value, "government could hardly go on., 22 Every governmental act affects some value; nonetheless, we assume there are public purposes that can and should be accomplished without recompense for consequent private loss. Hence, takings law focuses on two related questions. The first is what lost value is compensable on account of a change in the law. Because property value is created by law, this question and its answer are circular; there is no uncontroverted account of value that avoids this circularity.' As Justice Kennedy wrote in his Lucas concur- rence: "[I]f expectations are shaped by what the courts allow as a proper exercise of governmental authority, property tends to become what the courts say it is."'24 The second question is what noncom- pensable limitations of private rights are permissible in the public interest; subsumed within that is the puzzle of whether to concep- tualize the public interest as an aggregation of private rights, as something more, or as something other. The difficulty of answering 25 these questions has made takings law a "muddle., 17. U.S. CONST. amend. V, cl. 4. 18. Lucas, 112 S. Ct. at 2901 (quoting Curtin v. Benson, 222 U.S. 78, 86 (1911)). 19. 260 U.S. 393 (1922). 20. Id. at 415. 21. See, e.g., Powell v. Pennsylvania, 127 U.S. 678, 685 (1888) (holding that intent of regulations passed pursuant to police power are "questions of fact and of public policy which belong to the legislative department to determine"); Mugler v.