The Decline of American Property Rights

Damon W. Root | July 7, 2009

George Mason University law professor and Reason contributor Ilya Somin has a great post at the Volokh Conspiracy explaining that "prior to the triumph of statist judicial and economic ideology during the New Deal period, American courts at both the state and federal level provided far stronger protection for property rights than they do today."

Today's Supreme Court allows the government to condemn property for virtually any reason, and almost never declares a regulation to be a taking requiring compensation unless the regulation involves physical "occupation" of property or permanently wipes out 100% of the property's economic value; wiping out a mere 98% is not enough.... In the 19th and early 20th century, by contrast, the Supreme Court made clear in the 1896 Gettysburg case that a taking transferring property from one private individual to another would be considered suspect under the Public Use Clause of the Fifth Amendment.... The early 20th century Court also gave property owners broader protection against regulatory takings than exists today, in cases such as Pennsylvania Coal v. Mahon (1922), a decision written by Justice Oliver Wendell Holmes, one of the justices of that era least willing to use judicial review to protect property owners (or anyone else). It is also worth noting that, in 1917, the Supreme Court relied partly on property rights analysis in striking down racially restrictive zoning in Buchanan v. Warley, a case that helped save the United States from becoming vastly more segregated than we already were.

Read the rest here. In 2007 I profiled Moorfield Storey, the NAACP attorney responsible for the Supreme Court's decision in Buchanan v. Warley. Read that here.

Comments

Tomcat1066|7.7.09 @ 9:52AM|#

Property rights are considered a joke by the various governments in this country. Currently, the blog I co-own has been fighting with our local government about a sign ordinance that I feel is a property rights issue as well...and the city doesn't seem to give a damn!

No one seems to care about property rights anymore. Let's face it though, it's not your property anyways. You just rent it from the government...they just call the rent "property taxes"

Alan Vanneman|7.7.09 @ 10:19AM|#

I see one minor problem with this analysis: Life is a hell of a lot better today than it used to be. Perhaps the biggest "invasion" of property rights--one that both Barry Goldwater and Ronald Reagan passionately resisted--were laws and court decisions denying property owners the "right" to discriminate against Blacks, Jews, Catholics, etc., etc.

As a good Hobbesian, I argue that it is the state that creates property rights. The extent of those rights is purely a matter of discretion on society's part. "Natural rights"? Sorry, I've never seen one, and neither have you. There is agreement on the mass of a neutrino, but not on "natural law" (either Catholic or libertarian).

Tomcat1066|7.7.09 @ 10:32AM|#

With that, then you have no problem with the state deciding that you must open your home to homeless gangbangers three nights per week, right? After all, if the state "creates" property rights, then they can also dictate what happens on that property in total.

Mike|7.7.09 @ 10:34AM|#

"I argue that it is the state that creates property rights."

Does the state create your right to life, too? Or your right to do what you choose with your body? If you're going to deny natural rights, you have to deny all of them.

Fluffy|7.7.09 @ 10:51AM|#

As a good Hobbesian, I argue that it is the state that creates property rights.

Hobbes argues that the existence of a state with the power to subdue any private individual is necessary for the enjoyment of property rights.

This is an extramoral argument and as such is silent on the question of whether any particular property arrangement is just or not.

It actually amounts to not much more than a trivial practical observation. You could use Hobbes' mode of argument to similarly argue that, in the absence of a state strong enough to subdue the most powerful private individual, no man can enjoy the right to not be a slave. But this would not tell you whether or not slavery is just.

Fluffy|7.7.09 @ 10:54AM|#

Actually, the best way to use Hobbes to argue for your position would be to say that, even if the state imperfectly protects property rights, we are still more secure in our property than we would be if the state did not exist - and so we should respect the authority of the state even when it is unjust, if the level of injustice it brings to bear remains less than that which would prevail if the civil authority failed.

This is a different statement than saying "Property rights come from the state."

Elemenope|7.7.09 @ 10:56AM|#

There is agreement on the mass of a neutrino...

I used to think so, too.

|7.7.09 @ 11:21AM|#

"With that, then you have no problem with the state deciding that you must open your home to homeless gangbangers three nights per week, right?"

Will they be bringing weed?

Xeones|7.7.09 @ 11:21AM|#

There is agreement on the mass of a neutrino...

I used to think so, too.

No you didn't.

Tomcat1066|7.7.09 @ 11:28AM|#

Will they be bringing weed?

No. Instead, they're planning on smoking all of yours, since the State has also decreed that all of your property is theirs as well during the previously mentioned three days per week.

Sucks to be you.

|7.7.09 @ 11:43AM|#

9th circuit: you don't own your own money (money is not property)

http://www.cato.org/pub_display.php?pub_id=10142

I believe Reason had a blurb about this in their latest issue.

|7.7.09 @ 12:38PM|#

I see one minor problem with this analysis: Life is a hell of a lot better today than it used to be.

Ergo, nothing that has happened in the last 80 - 100 years should be complained about; every single thing has been for the best; nothing could possibly be improved.

Seward|7.7.09 @ 2:02PM|#

Alan Vanneman,

I see one minor problem with this analysis: Life is a hell of a lot better today than it used to be.

And most of that has very little to do with what the state does.

Perhaps the biggest "invasion" of property rights--one that both Barry Goldwater and Ronald Reagan passionately resisted--were laws and court decisions denying property owners the "right" to discriminate against Blacks, Jews, Catholics, etc., etc.

As a practical matter, businesses which continue to discriminate continue to do so, businesses which do not, do not. Of course, people are pretty tribal and that shouldn't be all that surprising. Barring a level of coercion most would not condone, this will continue. The important thing of course is that state shouldn't be mandating or encouraging discrimination.

jtuf|7.7.09 @ 2:15PM|#

As an adolescent, I decided to stay in the US, because it's one of the most capitalistic countries on the planet. That's becoming less true each year.

Seward|7.7.09 @ 2:23PM|#

Actually, the best way to use Hobbes to argue for your position would be to say that, even if the state imperfectly protects property rights, we are still more secure in our property than we would be if the state did not exist...

Well, I could imagine situations - and apparently we can observe one in the case of Somalia - where the absence of a state - or at least a centralized one? - is better than its existence. Of course I guess there really are "states" of a sort in Somalia, they just don't control the entire country, only portions.

Also, Hobbes argued that there were a number of loopholes regarding the power of the state, and these loopholes can only be described in my mind as natural rights - and they include the right to self-defense (which would include the right to contest one's own execution) as well as to one's honor. Hobbes wasn't all that consistent in other words, and I think he was largely concerned with boosting the Crown's powers so as to put off another civil war.

|7.7.09 @ 2:46PM|#

Well, I could imagine situations - and apparently we can observe one in the case of Somalia - where the absence of a state - or at least a centralized one? - is better than its existence.

Certainly, the absence of a state in Somalia is better than the presence of the usual kleptocratic authoritarian thugocracy for the area. I'm not so sure that Somalia is better off than it would be with a libertarian-style minarchy.

I suspect that Somalia lacks, at this point, anything that we would recognize as property rights in the West, other than the informal right to whatever no one else cares to, or can, take from you. Still, I'm not terribly well informed on the actual state of play on the ground in Somalia these days; maybe they do have a reasonably accurate and dispassionate method of determining and enforcing property rights.

EscapedWestOfTheBigMuddy|7.7.09 @ 4:22PM|#

There is agreement on the mass of a neutrino

The hell you say.

That is my business, and while we are sure they have some, we are some time (and quite a few of your tax dollars) from knowing how much.

Ask me again in eight to ten years and I might have an answer for you. Or one year after a near(ish), large supernova---that would give us a decent place to work from.