Document Type

Article

Publication Title

Tulsa Law Journal

Abstract

It is instructive to seek some explanations for this high level of Warren Court quiescence on property rights issues when there was such a high degree of tumult in other areas of its work. The best explanations do not reflect ill upon the Warren Court. It is a commonplace observation, easily forgotten, that courts do not generate the controversies that come before them. While the power of certiorari gives the Supreme Court the power to pick its cases and to hone in on its issues, that power does not allow it to enter into areas where there are no existing controversies between litigants. The Court should make sure that important issues stirring below receive its full attention. But it cannot command legislatures and litigants to redirect their private agendas to suit its own purposes. And for most of the Warren Court, property rights issues of all stripes and decisions were not at the front of the American political consciousness. There are two explanations for this general trend. The first is historical. The constitutional watershed of the 1937 Term had the effect of blocking property-rights based challenges to the exercise of governmental power on matters of general economic regulation. Questions of economic liberty were also given short shrift, as legislation on these matters was subject to a very low standard of review largely under the Due Process Clause, where even minimum rationality would suffice. After 1937, Lochner v. New York came to symbolize a bygone era in which the Supreme Court abused its constitutional power to protect private property and freedom of contract by falsely elevating common law categories to constitutional levels. The second explanation is less theoretical and more practical - it involves not history, but politics. The contemporary legislative agenda did not force the Court to mediate between aggressive state regulators and beleaguered property owners. It is remarkable to recount the large number of property fights cases in the Warren Court that were concerned with dams and water fights, the precise definition of a flowage easement, or the scope of the navigation servitude (largely settled some fifty years before). But these cases doubtless came out of the expansive program for dam construction in an age that was not keen on keeping wilderness pristine. Even five years before, the Court had seen a constant stream of disputes over leasehold property that originated in temporary takings during World War 11. Occasionally these cases surfaced in the Warren Court, but in obviously diminishing numbers. Otherwise a fair number of cases dealt with such topics as the priority of government liens, the rules governing the extinction of the equitable rights of redemption in foreclosure (itself a holdover from the questions of the 1930s), and occasionally novel applications of the zoning law. But in truth the early Euclid decision was so strongly pro-state that these cases only tested the limits of the basic question, but did nothing to reorder fundamental priorities.

First Page

643

Volume

31

Publication Date

1996

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