Document Type

Article

Publication Title

University of Chicago Law Review

Abstract

My task in this article is not an enviable one: It is to persuade you that the dominant mode of thinking about property rights during the past fifty years has been a mistake of constitutional dimensions. It would be convenient if I could say that I merely favor a return to the set of doctrines that governed economic liberty and property before 1937, in the so-called Lochner era. Yet that description would understate the difference between my views and the historical evolution of the law. Some of the most restrictive decisions on property rights took place in the years before 1937, often by judges who would be described as conservative by modern standards. I refer here by way of example to the lamentable decisions of Justice Holmes in Block v Hirsh, and of Justice Sutherland in Euclid v Ambler Realty Co. The first of these upheld the power of the state to impose rent control restrictions, "temporarily" of course; and the second gave the state expansive powers to control land use through zoning, a power that has hardly been enlarged in the ensuing sixty years of ceaseless litigation. I am therefore urging not a return to some lost golden era, but the adoption of a regime for the protection of private property and economic liberties that is far more extensive and internally coherent than the patchwork of protections afforded to these interests under the Takings Clause before 1937. More difficult still, I believe that all this transformation is possible even with the universal acceptance of the "welfare state"-the commitment to support people in need by casting that burden on others through the coercive mechanism of the state-which has become a permanent part of the basic constitutional order at both the state and federal level. My task is made more complicated in that the defense of the present constitutional scheme is undertaken by Professor Frank Michelman, who surely ranks among the most eloquent expositors of the Just Compensation Clause, and as one of the most ardent defenders of the modern legal order that I seek to undermine. In order to develop my case, I shall pursue the analysis from an unconventional quarter: I shall look at the doctrinal structures of First Amendment law and then indicate how they can, and should, be carried over into the analysis and discussion of the Takings Clause. My basic conclusion is that the Takings Clause and economic liberties should not be viewed as things alien and uncongenial to modern constitutional norms. One need only apply to private property the presuppositions and techniques that have organized the law of freedom of speech. Within this framework the sole concession that one must make to the welfare state is to accept income redistribution funded with taxes (perhaps even progressive taxes) derived from general revenue sources. Otherwise, the edifice to protect freedom of speech carries over to private property, without losing a beat.

First Page

41

DOI

https://doi.org/10.2307/1599933

Volume

59

Publication Date

1992

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