"How Far the Courts Have Moved Away from Defending Property Rights"?

David Henderson (EconLog) writes:

Law professor Eugene Volokh has a recent piece in the Wall Street Journal defending the right to burn the American flag as an exercise of free speech. It's good reasoning, and there's nothing in it that I disagree with. But he omits a much better argument based on property rights. If you burn my flag without my consent, I don't care how much you're exercising your right to free expression. Free expression does not guarantee you the right to other people's property any more than it guarantees you a working larynx. But if you burn your flag, you're simply exercising your right to use your property as you wish. It's a sign of how far the courts have moved away from defending property rights that Eugene Volokh, a pro-freedom, pre-property rights lawyer, does not make the property rights case.

I agree with Prof. Henderson that people should be free to use their property so long as they don't harm others in certain fairly well-defined ways; and I agree that burning a flag does not cause any such harm. I'm not certain that the Constitution authorizes courts to enforce this rule through provisions outside the First Amendment — but that's a story for another day and for another author. But I do want to speak briefly about the "how far the courts have moved away from defending property" line, because I think it exemplifies a common claim about how once upon a time we had broad — and judicially enforced — property rights and today we don't.

The fact is that throughout American history, courts have upheld a vast range of restrictions on private property, including many restrictions that libertarians would find reprehensible. And that is true even during the heyday of constitutional economic rights protection during the Lochner era.

In fact, even when courts were "defending property" around the time of Lochner, the Supreme Court expressly rejected the property rights argument as to use of the flag. The case was Halter v. Nebraska (1907), decided two years after Lochner. Halter upheld a law that outlawed the selling of "any article of merchandise upon which shall have been printed or placed, for purposes of advertisement, a representation of the flag of the United States." This was, of course, a ban on advertising and sales rather than on the use of the flag as a political symbol, which might be relevant to a free speech claim. But no free speech claim reached the Supreme Court; rather, the Court dealt with a claim about the rights to property and general liberty of conduct — a claim that would equally apply to commercial use of the flag as to political burning of the flag.

And the Court rejected the argument, by an 8-1 vote (the only dissenter was Justice Peckham, who wrote the Lochner majority opinion). Here's an excerpt (some paragraph breaks added):

[W]e cannot hold that any privilege of American citizenship or that any right of personal liberty is violated by a state enactment forbidding the flag to be used as an advertisement on a bottle of beer. It is familiar law that even the privileges of citizenship and the rights inhering in personal liberty are subject, in their enjoyment, to such reasonable restraints as may be required for the general good.

Nor can we hold that anyone has a right of property which is violated by such an enactment as the one in question. If it be said that there is a right of property in the tangible thing upon which a representation of the flag has been placed, the answer is that such representation — which, in itself, cannot belong, as property, to an individual — has been placed on such thing in violation of law, and subject to the power of government to prohibit its use for purposes of advertisement.

Looking, then, at the provision relating to the placing of representations of the flag upon articles of merchandise for purposes of advertising, we are of opinion that those who enacted the statute knew, what is known of all, that to every true American the flag is the symbol of the nation's power, — the emblem of freedom in its truest, best sense. It is not extravagant to say that to all lovers of the country it signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary power; and absolute safety for free institutions against foreign aggression.

As the statute in question evidently had its origin in a purpose to cultivate a feeling of patriotism among the people of Nebraska, we are unwilling to adjudge that in legislation for that purpose the state erred in duty or has infringed the constitutional right of anyone. On the contrary, it may reasonably be affirmed that a duty rests upon each state in every legal way to encourage its people to love the Union with which the state is indissolubly connected.

The Court did point to two state supreme court cases that had indeed held similar statutes at least partly unconstitutional. But even those cases were limited in their reasoning. People ex rel. McPike v. Van De Carr, 178 N.Y. 425, held only that the ban was unconstitutional as to existing material depicting the flag, and would be constitutional in banning production of new such material. (In the flagburning context, this would mean that people would have the right to burn flags made before the statute limited the property rights in flags, but the government could prospectively announce that any flags made in the future could not be burned.) And even Ruhstrat v. People, 185 Ill. 133, which had the more broadly liberty-protecting reasoning of the two cases, suggested that the result might be different if the federal government — to which the care of national symbols, in the Illinois Supreme Court's view, was exclusively entrusted — asserted its interests in preventing misuse of the flag.

My point here is simply that there was no Golden Age of constitutional property rights in which the Supreme Court adopted anything close to libertarianism as a constitutional rule. Past legal regimes may have been more property-protective (though less protective of other aspects of liberty, such as free speech, sexual autonomy, and the like). They included, for instance, moderately strong enforcement of the Contracts Clause, and some protection for liberty of contract and the liberty to enter one's chosen profession. But there was always a very great deal of room for the government to restrict people's behavior, including in ways that modern libertarians would roundly condemn. That's true as to the example in the EconLog post — use of the flag — but it's also true of a wide range of other unlibertarian restrictions, which were upheld under "police power" principles during the Lochner era.

So it's not "a sign of how far the courts have moved away from defending property rights that Eugene Volokh, a pro-freedom, pre-property rights lawyer, does not make the property rights case." It's a sign that the American judiciary has never taken a very broad view of property rights, and in particular has never taken a view broad enough to protect alleged misuse of the flag. Say what you will about what you think courts should do in the future; but acknowledge that they were never terribly protective of property and of general liberty of conduct even when such protections were at their maximum.

Thanks to Wesley Gorman for the pointer.