Sunday, August 24, 2008

Property rights: the poor relations of con-law

Last night I was at The Plaza my mom told me that police officers in Evergreen Park, a suburb outside of Chicago, were actually going onto private property to write tickets. They were going into the parking lot of a shopping mall looking for cars to ticket. I thought there was something wrong with that.

Thru Instapundit I found this post from The Volokh Conspiracy. The bloggers there has posted an abstract excerpt of an article discussing Supreme Court jurisprudence on property rights for the past two decades...
Over the last twenty-five years, the Supreme Court has expanded protection for constitutional property rights. After decades of neglect, the Court has begun to take property rights seriously. At the same time, however, protection for property rights still falls far short of that enjoyed by most other individual rights . . . In case after case, the Court has expressed support for property rights, but stopped short of providing them with more than minimal protection . . . Despite the Court's own rhetoric to the contrary, property rights are still the poor relation of the Constitution.

Part I of this article analyzes the Court's recent property rights jurisprudence. It particularly focuses on the Court's decisions interpreting the Takings Clause of the Fifth Amendment. I examine key decisions on public use, regulatory takings, remedies for takings clause violations, and access to federal courts for citizens who claim that their property rights have been violated...

Part II considers some of the standard rationales for denying judicial protection for property rights equal to that enjoyed by other constitutional rights. It addresses claims that property rights deserve little or no protection because they are already protected by the political process, because the courts lack expertise on economic issues, because judicial protection would benefit the rich at the expense of the poor, because the Courts should not enforce supposedly arbitrary common law property baselines, and because judicial protection for property rights might harm the environment. I suggest that each of these concerns is overstated, and that many apply with equal or greater force to the enforcement of other constitutional rights. Moreover, expanded judicial protection for property rights might actually benefit the poor more than the wealthy and may in some important cases promote environmental protection rather than diminish it.

Finally, Part III briefly considers the future of constitutional property rights. In the long run, judicial protection for property rights can only be effective if it is embraced by jurists from a broad portion of the political spectrum. Property rights probably will not get much more judicial solicitude than they enjoy today if support for them remains confined to judicial conservatives and libertarians. Outside the Court, some liberal jurists and activists have shown an increasing willingness to reconsider traditional post-New Deal hostility to property rights. The strong left of center reaction against the Court's decision in Kelo v. City of New London may point the way forward to cross-ideological cooperation on these issues.
May I note that if you read The Second Treatise of Government by John Locke a 17th century English philosopher, the most important right an individual has is property rights. It'll be proven true if anyone can do what they want to your property, then you're not likely to have rights. Especially if you're in business.

For instance a few years ago on 20/20, John Stossel was doing a program on myths. He stated that one reason Africa wasn't doing so well is that there are many barriers that prevent commerce from taking place. Mainly regulations, corruption, no streamlining, and yes little or no property rights. They showed footage of a business being torn down on a whim by an African government.

Anyway this is just something to consider on a Sunday afternoon.

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