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6 The Enigmatic Place of Property Rights in Modern Constitutional Thought  . , . The notion that property ownership is essential for the enjoyment of liberty has long been a fundamental tenet of Anglo-American constitutional thought. Property is more than the physical possession of an object. The concept of ownership encompasses a range of interests, including the right to use, develop, and dispose of one’s property. Envisioning property ownership as establishing the basis for individual autonomy from government coercion , the framers of the Constitution placed a high value on the security of property rights. Echoing the philosopher John Locke, John Rutledge of South Carolina advised the Philadelphia convention that “Property was certainly the principal object of Society.”1 Further, the framers believed that respect for property rights was crucial to encourage the growth of national wealth. In the main the framers relied upon a variety of institutional arrangements , such as the separation of powers, to guard the rights of property owners. Still, the Constitution and Bill of Rights contain important provisions designed to restrain legislative incursions on property rights. Not surprisingly, therefore, throughout most of American history the Supreme Court functioned as a guardian of property and economic rights against legislative encroachments. Although the Progressive movement of the early twentieth century challenged the high constitutional standing of property and called for greater governmental management of the economy, the Supreme Court remained leery of laws that limited the rights of property owners. The Court’s defense of traditional property rights in the 1930s, however , threatened the New Deal program to combat the Great Depression, eventually causing President Franklin D. Roosevelt to propose his plan to “pack” the Court. This constitutional crisis was avoided when in 1937 the justices abruptly abandoned scrutiny of economic regulations. Known as the constitutional revolution of 1937, this shift had a profound impact on property rights. Deference to the economic and social judgments of lawmakers became the new orthodoxy. Thus, judicial review of economic legislation since 1937 has been largely perfunctory.2 Liberal constitutionalism moved in other directions, with scant attention to property rights. Indeed, after the New Deal it became rather fashionable for scholars to ignore or belittle the significance of constitutionally protected property. Desirous of achieving a more egalitarian distribution of wealth and pursuing a host of regulatory objectives , liberal scholars formulated doctrines to eviscerate private property rights and enlarge governmental power over the economy. This skeptical attitude toward private property has permeated modern legal culture. The New Deal political hegemony gradually dissolved, and by the 1980s new political and intellectual currents were more solicitous of the rights of property owners. The contemporary political climate, as evidenced by the deregulation movement and the trend to reduce taxation, favored the security of property interests. The changing composition of the Supreme Court boded well for property rights as justices appointed by Republican presidents proved more concerned with property issues than their liberal predecessors . There were also important intellectual trends sympathetic to the defense of property rights. Classical economic thinking, which stressed the efficiency of free markets, was increasingly employed in the analysis of legal issues. The law and economics movement stressed the deficiencies of governmental regulation of economic activity. Warning that regulations often imposed heavy compliance costs, hampered competition, and restricted economic opportunity, this school of thought argued that the operations of the free market should ordinarily determine the price of goods and services. Another group of legal scholars, spearheaded by Richard A. Epstein and Bernard Siegan, has mounted a sustained challenge to the statist jurisprudence that has dominated thinking about property rights since the New Deal.3 Urging the federal courts to defend the free market and prevent government transfers of private wealth, they have been instrumental in reopening public debate regarding the constitutionality of economic regulations . Among other arguments, these scholars have reasserted the vision of the framers that economic and individual rights were fundamentally inseparable . In recent decades there were some indications that the Supreme Court under Chief Justice William Rehnquist was in the process of reinvigorating the property clauses of the Constitution. A focus solely on the Supreme Property Rights in Modern Constitutional Thought / Ely | 109 Court, however, does not give us the full picture with respect to property rights. Many property issues are presented in state and lower federal courts. There is evidence that some of these courts have become more assertive in defending property against legislative infringement under state constitutional provisions. In this essay, I propose to briefly review current law dealing...


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