- - Wednesday, July 29, 2015

The protection of private property rights was one of the Founding Fathers’ main goals in establishing the Constitution.

As Alexander Hamilton put it in a speech at the Constitutional Convention, most of them believed that “one great obj[ect] of Gov[ernment] is the personal protection and security of property.”

The Constitution includes several provisions protecting property rights from the depredations of government. Unfortunately, the Supreme Court has often failed to fully enforce them, relegating constitutional property rights the status of a “poor relation,” as a 1994 decision critical of such tendencies put it.

Early twentieth-century Progressives argued that the courts should leave property rights to the political process, so that government planners could restructure them in order to benefit society. This ideology triumphed during the New Deal, and continues to wield considerable influence even today, though the situation has improved in recent years.

Nowhere is the second-class status of property rights more evident than in the Court’s treatment of the Takings Clause of the Fifth Amendment, which mandates that the government can only take private property for a “public use,” and must pay just compensation when it does so.

Beginning in the 1950s, the Supreme Court ruled that a “public use” can be almost anything the legislature says it is, and that the courts should defer to legislative determinations. This approach repudiated the original meaning of “public use,” which was confined to publicly owned infrastructure or private enterprises that had a legal duty to serve the entire public, such as utilities. As a result, state and local governments used the power of eminent domain to forcibly displace hundreds of thousands of people in “blight” and “urban renewal” condemnations that transferred property to private business interests.

This line of cases culminated in the Court’s notorious 2005 ruling in Kelo v. City of New London, which permitted the taking of homes for transfer to private interests in order to promote “economic development” even if the government could not prove that the promised development would ever actually happen.

The Court’s deference to the government in determining what counts as a public use issues effectively allows the scope of a constitutional right to be decided by the very government entities whose abuses that right is supposed to constrain. It is the equivalent of letting the police decide what qualifies as a “reasonable” search under the Fourth Amendment. As Justice Clarence Thomas put in his Kelo dissent, the Court carefully scrutinizes legislative judgments “when the issue is only whether government may search a home,” yet is unwilling to question “the infinitely more intrusive step of tearing down … homes.”

The Court has often been similarly dismissive of property rights in assessing the crucial issue of whether a “taking” requiring compensation has occurred in the first place. Current precedent holds that a taking occurs if the government has engaged in a “permanent physical occupation” of the owner’s property or if regulations restricting the owner’s use of it destroy 100% of its economic value. But if the occupation is prolonged but temporary, or a regulation deprives an owner of “only” 95% of its value, there is often no taking at all, and the owner gets nothing.

In recent years, the Court’s record on property rights has improved. In several decisions, it has gradually strengthened protection against uncompensated takings. It has also cracked down on practices under which landowners are sometimes forced to go through costly, byzantine administrative procedures before they can even raise a takings claim. Most recently, in its June decision in Horne v. Department of Agriculture, an 8-1 majority held that a taking has occurred when the government seizes large quantities of raisins from producers, in order to artificially inflate the market price of that commodity.

Even Kelo represents progress of a sort. Unlike previous rulings endorsing an ultrabroad definition of “public use,” which were unanimous, it was a close 5-4 decision. In the aftermath, there was widespread criticism of Kelo on both the right and the left. Such unlikely bedfellows as Rush Limbaugh and the NAACP denounced the decision, which generated a massive political backlash.

There is now growing recognition that judicial enforcement of constitutional property rights should be strengthened. But while the Court’s performance in this vital field has improved, there is still a long way to go before the right to private property can fully shed its “poor relation” status.

Ilya Somin is a Professor of Law at George Mason University, and author of The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press, 2015).

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