Federalism and Property Rights
George Mason University - Antonin Scalia Law School, Faculty
April 30, 2011
University of Chicago Legal Forum, Symposium on Governance and Power, pp. 53-88, 2011
George Mason Law & Economics Research Paper No. 11-33
Both the Supreme Court and leading legal scholars have often cited federalism as a reason to severely limit federal judicial enforcement of constitutional property rights. Defenders of the federalism rationale for judicial deference on property rights issues make two key arguments. One holds that abuses of property rights by state or local governments will be curbed by interjurisdictional competition, rendering judicial intervention unnecessary. The second is the superior knowledge and expertise of state and local governments relative to federal judges.
This article criticizes both claims. Part I explains why competitive federalism is unlikely to provide effective protection for property rights in land because property is an immobile asset. People who “vote with their feet” by leaving a jurisdiction cannot take their land with them. For this crucial reason, interjurisdictional competition will often fail to effectively protect property rights in land, though it may be more useful in the case of rights to mobile property.
Part II takes up the issue of diversity and expertise. While state and local governments may indeed have greater expertise than federal courts in assessing local conditions, federal judicial protection of property rights ultimately empowers not judges but property owners. It is the latter who will actually get to decide the uses of the land in question in cases where federal courts prevent state or local governments from condemning their property or restricting its use. Owners generally have greater knowledge of their land than local government officials do. Moreover, the local expertise rationale for judicial deference on property rights would, if applied consistently, justify judicial deference to state and local governments with respect to numerous other constitutional rights, including those protected by the First and Fourth Amendments.
Number of Pages in PDF File: 37
Keywords: blight, City & County of San Francisco, economic development, eminent domain, exit, F.A. Hayek, Frank Michelman, John Paul Stevens, Kelo v. City of New London, Melvyn R. Durchslag, Poletown, property rights, public use, Robert Ellickson, Roderick Hills, San Remo Hotel, takings clause, Thomas Merrill
JEL Classification: D23, H82, K11
Date posted: August 10, 2011 ; Last revised: September 22, 2011