Property Rights as the "Poor Relation" of Constitutional Law:

For all the property rights mavens out there, my article considering the last two decades of Supreme Court property rights jurisprudence is now available on SSRN. It is scheduled to be published in an edited volume including contributions by various constitutional law scholars on recent Supreme Court jurisprudence in their areas of expertise. Among the highlights are contributions by Michael McConnell (general introduction), Larry Sager (religion clauses), and Reva Siegel (equal protection). Here's an excerpt from the abstract of my own much less exalted contribution:

Over the last twenty-five years, the Supreme Court has expanded protection for constitutional property rights. After decades of neglect, the Court has begun to take property rights seriously. At the same time, however, protection for property rights still falls far short of that enjoyed by most other individual rights . . . In case after case, the Court has expressed support for property rights, but stopped short of providing them with more than minimal protection . . . Despite the Court's own rhetoric to the contrary, property rights are still the poor relation of the Constitution.

Part I of this article analyzes the Court's recent property rights jurisprudence. It particularly focuses on the Court's decisions interpreting the Takings Clause of the Fifth Amendment. I examine key decisions on public use, regulatory takings, remedies for takings clause violations, and access to federal courts for citizens who claim that their property rights have been violated...

Part II considers some of the standard rationales for denying judicial protection for property rights equal to that enjoyed by other constitutional rights. It addresses claims that property rights deserve little or no protection because they are already protected by the political process, because the courts lack expertise on economic issues, because judicial protection would benefit the rich at the expense of the poor, because the Courts should not enforce supposedly arbitrary common law property baselines, and because judicial protection for property rights might harm the environment. I suggest that each of these concerns is overstated, and that many apply with equal or greater force to the enforcement of other constitutional rights. Moreover, expanded judicial protection for property rights might actually benefit the poor more than the wealthy and may in some important cases promote environmental protection rather than diminish it.

Finally, Part III briefly considers the future of constitutional property rights. In the long run, judicial protection for property rights can only be effective if it is embraced by jurists from a broad portion of the political spectrum. Property rights probably will not get much more judicial solicitude than they enjoy today if support for them remains confined to judicial conservatives and libertarians. Outside the Court, some liberal jurists and activists have shown an increasing willingness to reconsider traditional post-New Deal hostility to property rights. The strong left of center reaction against the Court's decision in Kelo v. City of New London may point the way forward to cross-ideological cooperation on these issues.

property rights deserve little or no protection because they are already protected by the political process,

As I understand it, Madison thought the same thing about personal ("civil") rights, interestingly, and for this reason was indifferent to the addition of a bill of rights to the Constitution.

Apparently the idea is that if you have a good government, it does not need any explicit prohibition on interfering with personal or property rights, and if you have a bad government, then no mere statement of those rights on a piece of paper will usefully defend them.

Personally, I find that pretty convincing. I wouldn't dream of depending on my Constitutional rights in a situation where I thought the majority of my fellow citizens and the machinery of government was poised to run over them.
8.24.2008 3:56am
Indeed, many things are protected by the political process, especially the incumbents' jobs. Property rights? Not so much.
8.24.2008 11:45am
Obvious (mail):
If you have good government, you don't need a bill of rights. And if you have a good ship, you don't need all those lifeboats. Yet good ships have lifeboats. Built-in redundancy is a good thing in many aspects of life.
8.24.2008 4:07pm
Dilan Esper (mail) (www):
Well, there may be a couple of justifications for this (and I say this as someone who didn't Kelo and would like to see property rights receive more protection):

1. Property rights are expressly subject to more regulation than other sorts of constitutional rights, pursuant to the text of the document. Property rights may be deprived as long as due process is satisfied, and property may be taken for public use as long as just (not necessarily full) compensation is paid.

Compare this to the absolutist languge of some of the other rights in the Bill of Rights. (E.g., freedom of speech, jury trials, confrontation of witnesses, etc.)

2. The philosophical basis for property rights is somewhat different than some other rights. Property rights depend on there being a reasonably fair initial distribution; if a nation converted from dictatorship to democracy and all of the property was controlled by 10 or 15 friends of the prior regime, respecting those property rights would not be supported by some great philosophical justification. (That's one of the reasons why Hawaii v. Midkiff came out the way it did.) In contrast, free speech, fair trials, etc., are rights that are thought of as inherent in one's status as a human person.

Again, this doesn't mean that property rights shouldn't receive more protection; it's just understandable why property rights might not receive as much protection as other rights in the Constitution.
8.24.2008 9:59pm
Eric Elerath:
Without criticizing the article's merits, what strikes me most frequently about articles on property rights is the absence of any critical discussion - or even recognition of the distinction - between restrictions on land use and restrictions on visual character, and the same can be said for analyses of the legal record.

In Penn Central, for example, the underlying dispute was over the visual qualities of the building that would result from constructing a contemporary-style tower over a Beaux Arts train station. The architect was an avowed modernist, and the Landmarks Commission didn't like the visual appearance of the result. Presumably, had the proposed tower been designed in a style that was sympathetic to the existing station below (similar to that originally designed and not built), no dispute would ever have arisen, but the attorneys obviously made the wrong argument when they argued a takings. This has resulted in 30 years of bad decisions due to the attorney's incompetence and, on the horizon, there appears to be no legal minds capable of making corrective distinctions.

The article rightly identifies many problems with current land use decision making: quantifying claimed benefits, presumption of constitutional validity, deference to powerful experts, the absence of nexus between permission and regulation - but these problems are magnified in those cases where regulations address aesthetics without any utilitarian justification at all. That is, those arguments would be even stronger if applied to aesthetic regulations (such as historic architectural preservation) because the mechanics of aesthetic regulation have no reasonable basis to start with. Aesthetic regulation is emotional, subjective, religious and authoritarian.
8.25.2008 2:43am
Richard Aubrey (mail):
It would seem that those in a position to loosen property rights laws are in a position to benefit from it. See, say, the elected beneficiaries of developers who want property under Kelo.
Those in a position to loosen, for example, laws on murder are less likely to be in a position where they can personally benefit. laws are malleable.
8.25.2008 6:40am
Opher Banarie (mail) (www):
A less academic discussion of this topic is now out in paperback: Government Pirates: The Assault on Private Property Rights--and How We Can Fight It by Don Corace gives examples of the Takings Clause being abused in the name of Eminent Domain, Zoning, Wetlands and Endangered Species.
8.25.2008 5:13pm