A Property Clause for the Twenty-First Century

27 Pages Posted: 12 Jun 2010

Date Written: 2004


This article tries to draw some lessons from the way the Supreme Court has addressed implementation of the Property Clause of the U.S. Constitution by the Congress and the Executive, the more political branches of the national government. The Court has long said that the Property Clause contains no judicially enforceable limits on those other branches, and that stance is likely to continue. This article argues, instead, that the Property Clause can be said to have framed an attitude the Supreme Court has brought to bear on legal issues involving federal lands. That attitude, which may fairly be viewed as an expression of constitutional common law, favors retention of federal land in national ownership (retention), national over state and local authority (nationalization), and environmental preservation (conservation). It concludes that the Court’s decisions embodying that attitude have left a decidedly positive imprint on American life and culture.

Keywords: Constitutional Law, Property Clause, Federal Lands, Public Lands, Federalism, Natural Resources Law and Policy

JEL Classification: K32, K40, Q28, Q38

Suggested Citation

Leshy, John D., A Property Clause for the Twenty-First Century (2004). University of Colorado Law Review, Vol. 75, No. 4, 2004, Available at SSRN: https://ssrn.com/abstract=1622840

John D. Leshy (Contact Author)

UC Hastings Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-565-4726 (Phone)

HOME PAGE: http://www.uchastings.edu/?pid=1518

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