The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


The Supreme Court and property rights


In a recent Washington Times column sponsored by the Federalist Society, I briefly survey the Supreme Court's often-dubious record on protecting constitutional property rights:

The protection of private property rights was one of the Founding Fathers' main goals in establishing the Constitution….

The Constitution includes several provisions protecting property rights from the depredations of government. Unfortunately, the Supreme Court has often failed to fully enforce them, relegating constitutional property rights the status of a "poor relation," as a 1994 decision critical of such tendencies put it….

Nowhere is the second-class status of property rights more evident than in the Court's treatment of the Takings Clause of the Fifth Amendment, which mandates that the government can only take private property for a "public use," and must pay just compensation when it does so….

In recent years, the Court's record on property rights has improved. In several decisions, it has gradually strengthened protection against uncompensated takings….

But while the Court's performance in this vital field has improved, there is still a long way to go before the right to private property can fully shed its "poor relation" status.

The Times and the Federalist Society have simultaneously published a column by the highly respected NYU law professor Roderick Hills defending the view that federal courts should largely abjure protection of property rights, and leave most such issues up to the discretion of state governments. Much of Hills' column is a critique of my previous writings on these issues. I will respond to him in a separate post later today.

UPDATE: My response to Rick Hills is now posted here.