The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Atlantic has just published my new article making the case for expanding protection for constitutional property rights. Here is an excerpt:
Alexander Hamilton said at the Constitutional Convention of 1787 that "one great obj[ect] of Gov[ernment] is the personal protection and security of property." James Madison, similarly, wrote that "government is instituted to protect property of every sort." Madison tried to ensure that the new Constitution would honor that principle, in part by authoring the takings clause of the Fifth Amendment, which restricts the government's power to take private property.
This should concern anyone who cares about protecting the rights of minorities and the poor. These groups are the primary victims when property rights are violated. They have seen the state condemn their homes for dubious private "development" projects. They have seen law enforcement seize their assets even when they have never been charged with any crime, much less convicted. And they have been shut out of housing and job opportunities by onerous zoning laws that block housing construction. These groups have the most to gain from stronger protection for property rights, which would enforce tighter constraints on government's power to take property and block development.
The article goes through several areas where protection for constitutional property rights remains weak, while also noting some recent improvements, and potential avenues for further progress.
This article was in the pipeline since before the coronavirus crisis. I understand why many readers might find it difficult to care about other issues right now. I sometimes feel that way myself!
At the same time, however, the crisis will end eventually, and it behooves to think about how to make a better society in the aftermath. Stronger protection for property rights can make a useful contribution to that task, and I hope my article can at least help stimulate further discussion on that point.
UPDATE: For those interested in property rights issues directly related to the coronavirus situation, see this post, in which I explain why courts are highly unlikely to rule that the Takings Clause requires the government to compensate owners of enterprises shuttered as a result of "shutdown" orders.