One theory might be that environmental groups, in search of a public benefit such as species preservation, successfully lobby for federal limits on self-protection measures such as brush clearance and forest thinning. Those limits contribute to the severity of the risks faced by California property owners. Some federal contribution to paying for losses might then be equitable.
Another theory might have to do with federal tax payments vs. federal benefits. Some studies suggest that Californians receive back from Washington, D.C. a substantially smaller percentage of their tax dollars than do residents of other states. Further, each geographical area has its problems. Hurricanes, tornadoes, ice storms, flooding, fires, earthquakes, droughts .... Some level of national insurance against catastrophic loss may be a reasonable risk sharing mechanism. I'm not sure whether private insurance is adequate to deal with the magnitude of possible risks. Response costs of state and local governments have not, I think, been the subject of private insurance. Mark S. Scarberry Pepperdine University School of Law -----Original Message----- From: Sanford Levinson [mailto:[EMAIL PROTECTED] Sent: Thursday, October 30, 2003 12:41 PM To: [EMAIL PROTECTED] Subject: Re: WELFARE, FOREST FIRES, AND THE CONSTITUTION I am genuinely curious as to how political and constitutional conservatives justify taxing national taxpayers in order to pay for eminently foreseeable disasters in California. (I keep hearing that these are the most serious forest fires in ten years. One of the things this tells me is that a lot of California is built on the equivalent of ten-year flood plains. Isn't this really quite irrational, and shouldn't people who do such things be responsible for purchasing insurance from the private market. Isn't federal insurance at below-market rates simply an invitation to moral hazard?) Is there any "general welfare" argument, say, for using federal funds to rebuild homes in Malibu, etc.? This is, of course, related not only to the Lochner thread, but to the more fundamental issue, as argued by Michelle Landis Dauber in two brilliant articles, that there is no self-evident way to distinguish between "natural disasters" and "misfortunes that are the fault of the victims." Why, for example, do conservatives assume that California deserves aid and, say, victims of structural unemplyment should be left to the vagaries of the market and private charity? I assure you this is not only a polemical question. David Currie has some fascinating discussions in his landmark study of The Constitution in Congress about the tense debates in the early 19th century about the propriety of using federal funds to help rebuild Savannah and Alexandria after fires. Does "general welfare" mean just whatever a majority of Congress decide it is, or is there some independent way of saying that A is "truly" in the general welfare and B is "really" unconstitutional rent-seeking. I suppose it doesn't go without saying that I am truly appalled by the devastation in California and at the suffering it has generated. But, after all, Harry Blackmun earned the scorn of many right-minded people (pun intended) for his sentimental reference to "Poor Joshua." What's the difference with "Poor Californians?" sandy
