The Volokh Conspiracy

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Property Rights

My New "Atlantic" Article Making the Case for Strengthening Protection for Property Rights

It particularly emphasizes ways in which weak property rights harm the poor and disadvantaged.


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.

NEXT: A Range of Approaches to Procurement for COVID-19

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  1. 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.

    Block development? Development, more often than not, has not been something poor and minority groups have reason to encourage. On the contrary, they have time and again had reason to want developments (of many kinds) blocked, not that trying it usually avails them much.

    "Development," rarely gets done by and for poor and minority folks. Development looks to the poor more like knocking down the South End in Boston, driving the poor out en masse, to build luxury high-rise apartments. Or it looks like adding a runway at the airport, and taking care to route the resulting new aviation noise to poorer-neighborhood flyovers.

    And they have been shut out of housing and job opportunities by onerous zoning laws that block housing construction.

    How many people remember that in the 1950s, Georgetown—for decades since, Washington's premier address—was still largely a black-person's neighborhood, and a slum. What changed? There had been a rendering plant near the riverfront, which stank up the neighborhood so bad that richer people shunned even driving nearby, let alone living there. After a concerted political campaign drove the plant out, and zoning assured its like would never return, a lot of black people made money selling their now-valuable property to a power elite newly alert to Georgetown's architectural charms. Some 1950s black property owners held on, and got rich.

    A recently-published interview with one of those now-aged survivors elicited no complaints about zoning. Zoning doesn't negate strong property rights. As the Georgetown example shows (and countless others around the nation also show), zoning has proved itself among the premier protections for strong property rights.

    The Boston area has a substantial coterie of millionaires, comprised of people with high school educations who grew up poor on land in the vicinity of what became Rte. 128 and Rte 3. Zoning made that possible. It can be amazing what an energetic poor person can accomplish after happenstance—and a well-tailored law—takes away the poverty.

    That zoning enriches some while frustrating others can seem like happenstance, and to some may seem unjust. But nothing about that makes zoning an underminer of property rights. More the opposite. A property right, any property right, by its nature, is an enrichment to its owner, and a discouragement to others. It seems paradoxical that Somin gets that exactly, but opposes zoning as if it were anti-property.

    1. I think there is a reasonable argument to be made that some zoning restrictions hurt the poor. An example is restrictions on building high-density housing in urban areas, which tends to make housing unaffordable. In addition, some urban renewal programs targeted minority communities for destruction.

      But in my views these are political arguments, with each law and project to be debated on its individual merits. They aren’t constitutional ones.

      Not all laws are wise or politic. This is as true of zoning laws as anything else.

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