Posted by Ilya Somin: More on the Decline in Judicial Protection for Property Rights; http://volokh.com/archives/archive_2009_07_05-2009_07_11.shtml#1247000373
In [1]his most recent post on our debate, Eugene agrees with [2]my claim that judicial protection for property rights has declined substantially since the New Deal period, but claims that judicial protection for property rights was "not very broad" even before that. It is certainly true that pre-New Deal courts did not protect property rights as much as many libertarians would want. However, they did provide quite extensive protections for property rights that went far beyond what we have today. Certainly, cases like [3]Berman v. Parker, [4]Kelo, [5]Poletown, and various modern regulatory takings decisions would have come out the other way before the New Deal. Under pre-New Deal jurisprudence, [6]hundreds of thousands of people would not have been expelled from their homes by "economic development," blight, and "urban renewal" takings. This alone shows that the difference between pre-New Deal and modern property rights jurisprudence was both stark and laden with important real-world consequences. It is certainly true that pre-New Deal courts did not provide absolute protection for property rights all the time. No constitutional right ever gets complete protection from judges, and none is totally immune to being overriden by competing considerations. On the other hand, many of the cases Eugene cites as upholding limits on property rights actually involved restrictions on economic liberties with little or no connection to property ownership. That is true of the examples he gives involving freedom of contract, maximum hours laws, restrictions on the sale of alcohol, bans on lotteries, and others. Pre-New Deal courts generally gave stronger protection for property rights (which were specifically enumerated in federal and state constitutions) than other economic liberties (most of which were implied from the Due Process Clause of the Fourteenth Amendment). The Supreme Court's endorsement of zoning in Village of Euclid v. Ambler Realty (1926) really did lead to substantial infringements on property rights. But this case came near the very end of the pre-New Deal era, and the Court's opinion did not extend the kind of categorical blank check for zoning that later decisions provided. Rather, the Euclid [7]majority opinion emphasized that it decision was limited to the specific type of zoning considered in that case, and that other forms of zoning might still be constitutionally suspect. Ultimately, the disagreement between us may not be that great. We seem to agree that there was a significant decline in judicial protection for property rights after the 1930s. Perhaps we differ only on what counts as "broad protection" for property rights. In my view, there is a huge difference between courts that allow thousands of people to be forcibly expelled from their homes and ones that forbid such practices. There is also a huge difference between a jurisprudence that denies compensation for nearly all regulatory takings and one that provides it for a fairly wide range of them. Banning such practices (along with a number of other restrictions on property rights) falls far short of a property rights utopia. But it certainly counts as "broad protection" in my book - especially compared to the modern alternative. In any event, my main purpose is to show that pre-New Deal Courts provided far greater protection for property rights than exists today, and that the difference between the two has substantial real-world effects. Whether the word "broad protection" applies is a less important question. References 1. http://volokh.com/archives/archive_2009_07_05-2009_07_11.shtml#1246994985 2. http://volokh.com/archives/archive_2009_07_05-2009_07_11.shtml#1246952705 3. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0348_0026_ZS.html 4. http://www.law.cornell.edu/supct/html/04-108.ZS.html 5. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=677763 6. http://www.law.gmu.edu/assets/homepages/isomin/files/LegalTimes_Blight.pdf 7. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0272_0365_ZS.html _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
