Sweet Land of Property?: The History, Symbols, Rhetoric, and Theory Behind the Ordering of the Rights to Liberty and Property in the Constitutional Lexicon
62 Pages Posted: 13 May 2008 Last revised: 25 Jan 2009
This article critiques the property rights movement's position that courts should scrutinize property regulation to the same extent that they now scrutinize fundamental liberty-based claims. At its root, the debate over the proper degree of scrutiny for property rights claims is a debate about the appropriate scope of a society's freedom to organize and reshape itself in search of a greater good. Strict scrutiny of regulation truncates the debate, demanding that we privilege what has been to guard against the hazards of the unknown. Greater judicial deference, by contrast, frees us to seek, through governmental actors pursuing the public interest, a better, more fulfilling society at the risk that we will fail.
Reviewing an array of arguments based on (1) intellectual and social history, (2) the rhetoric of modern jurisprudence, and (3) property law theory, this article shows that the movement's adherents have failed to make their case for strict scrutiny of property regulation. This article's critical assessment of the property rights movement cannot establish that judicial deference to legislative judgment in property rights cases is necessarily morally superior to more probing scrutiny. That the property rights movement has made virtually no progress more than two decades after it began, however, casts some measure of doubt on the possibility that it ever will.
Keywords: Eminent domain, Fifth Amendment, liberty, property, rights, Takings Clause, just compensation
JEL Classification: K10, K11
Suggested Citation: Suggested Citation