Buchanan and the Right to Acquire Property

56 Pages Posted: 22 Dec 2017

See all articles by James W. Ely

James W. Ely

Vanderbilt University - Law School

Date Written: December 21, 2017


This article examines the impact of the Supreme Court decision in Buchanan v. Warley (1917) invalidating residential segregation laws as a deprivation of property rights without due process of law. The decision was premised on a strong affirmation of the right to acquire property. The article explores the historical background and contemporary significance of the right to acquire property. It notes that early state constitutions expressly recognized such a right. It points out that the right to acquire found practical expression in hostility to state-conferred monopoly and in the right to follow common occupations, two doctrines which evolved under the due process clause of the Fourteenth Amendment. The article stresses that the right to acquire property, as in Buchanan, serves to protect the interests of the economically disadvantaged, racial minorities, and fledgling entrepreneurs. Although courts continued to invoke the right to acquire property, by the early twentieth century such right was increasingly limited by the spread of occupational licensing and enactment of laws hampering competition in certain businesses. This trend was facilitated by the emergence of New Deal jurisprudence which downplayed the rights of property owners and emphasized judicial deference to the economic judgment of legislators. As judicial review of economic regulations became largely perfunctory, occupational licensing and entry barriers proliferated in the years following World War II. Recently, however, some courts have looked skeptically at laws restricting entry into common occupations. The article concludes that the right to acquire property, although often ignored, retains some vitality.

Keywords: Anti-competitive laws,Anti-margarine laws,Buchanan v. Warley,William R. Day,Entry barriers,James Madison,New Deal,New State Ice Company v. Liebmann,New York v. Lochner,Occupational licensing,Ordinary callings,Patel v. Texas Department of Licensing and Regulation,Progressives,Property rights

Suggested Citation

Ely, James W., Buchanan and the Right to Acquire Property (December 21, 2017). Cumberland Law Review ; Vanderbilt Law Research Paper No. 65. Available at SSRN: https://ssrn.com/abstract=3091830

James W. Ely (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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