The Decline of American Property Rights

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.